UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549
_______________
 
FORM 10-K

/X/
Annual Report Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 for the fiscal year ended
December 31, 2014
or
/ /
Transition Report Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 for the transition period from ____ to ____.

Commission File No. 000-30109
_______________

LUMINEX CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE
 
74-2747608
(State or other jurisdiction of incorporation or organization)
 
(I.R.S. Employer Identification No.)
12212 TECHNOLOGY BLVD., AUSTIN, TEXAS
 
78727
(Address of principal executive offices)
 
(Zip Code)
(512) 219-8020
(Registrant’s telephone number, including area code)
_______________
Securities registered pursuant to Section 12(b) of the Act:
Title of each class
 
Name  of exchange on which registered
Common Stock, $0.001 par value
 
The NASDAQ Global Select Market

Securities registered pursuant to Section 12(g) of the Act: NONE
 
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes [X] No [ ]
 
Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act. Yes [ ] No [X]
 
Indicate by check mark whether the Registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the Registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes [X] No [ ]

Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). Yes [X] No [  ]

Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K (§229.405 of this chapter) is not contained herein, and will not be contained, to the best of Registrant’s knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K. [ ]

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 (Check one).
Large accelerated filer [X] 
 
Accelerated filer [ ]
Non-accelerated filer [ ] (Do not check if a smaller reporting company)
 
Smaller reporting company [ ]

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








Based on the closing sale price of common stock on The NASDAQ Global Select Market on June 30, 2014 , the aggregate market value of the voting stock held by non-affiliates of the Registrant was $ 659,326,125 as of such date, which assumes, for purposes of this calculation only, that all shares of common stock beneficially held by officers and directors are shares owned by “affiliates.”

There were 42,913,973  shares of the Company’s Common Stock, par value $0.001 per share, outstanding on February 23, 2015 .

DOCUMENTS INCORPORATED BY REFERENCE
Portions of the Registrant’s Proxy Statement for its 2015 Annual Meeting of Stockholders are incorporated by reference into Part III hereof.



LUMINEX CORPORATION

FORM 10-K
FOR THE YEAR ENDED DECEMBER 31, 2014

TABLE OF CONTENTS
 
PART I
PAGE
 
PART II
 
 
PART III
 
 
PART IV
 
 
 
 
Exhibit 10.7
 
 
Exhibit 10.26
 
 
Exhibit 10.40
 
 
Exhibit 10.42
 
 
Exhibit 10.43
 
 
Exhibit 10.44
 
 
Exhibit 10.45
 
 
Exhibit 21.1
 
 
Exhibit 23.1
 
 
Exhibit 31.1
 
 
Exhibit 31.2
 
 
Exhibit 32.1
 
 
Exhibit 32.2
 
 




Safe Harbor Cautionary Statement

This annual report on Form 10-K contains statements that are forward-looking statements under the Private Securities Litigation Reform Act of 1995. Forward-looking statements provide our current expectations of forecasts of future events. All statements other than statements of current or historical fact contained in this annual report, including statements regarding our future financial position, business strategy, impact of the reimbursement landscape, new products including ARIES® and NxTAG™, assay sales, the projected decline in consumables sales patterns and bulk purchases, budgets, system sales, anticipated gross margins, liquidity, cash flows, projected costs and expenses, taxes, litigation costs, including the costs or impact of any litigation settlements or orders, regulatory approvals or the impact of any laws or regulations applicable to us, plans and objectives of management for future operations, and acquisition integration and the expected benefit of our future acquisitions are forward-looking statements. The words “anticipate,” “believe,” “continue,” “should,” “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 based on our current plans and actual future activities, and our financial condition and 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:
 
risks and uncertainties relating to market demand and acceptance of our products and technology, including ARIES® and NxTAG™;

the uncertainty relating to increased focus on direct sales to the end user;

dependence on strategic partners for development, commercialization and distribution of products;

concentration of our revenue in a limited number of direct customers and strategic partners, some of which may be experiencing decreased demand for their products utilizing or incorporating our technology, budget or finance constraints in the current economic environment, or periodic variability in their purchasing patterns or practices as a result of material resource planning challenges;

the timing of and process for regulatory approvals;

the impact of the ongoing uncertainty in global finance markets and changes in government and government agency funding, including its effects on the capital spending policies of our partners and end users and their ability to finance purchases of our products;

fluctuations in quarterly results due to a lengthy and unpredictable sales cycle, fluctuations in bulk purchases of consumables, fluctuations in product mix, and the seasonal nature of some of our assay products;

our ability to obtain and enforce intellectual property protections on our products and technologies;

risks and uncertainties associated with implementing our acquisition strategy, including our ability to obtain financing, our ability to integrate acquired companies or selected assets into our consolidated business operations, and the ability to recognize the benefits of our acquisitions;

reliance on third party distributors for distribution of specific assay products;

our ability to scale manufacturing operations and manage operating expenses, gross margins and inventory levels;

changes in principal members of our management staff;

potential shortages, or increases in costs, of components or other disruptions to our manufacturing operations;

competition and competitive technologies utilized by our competitors;

our ability to successfully launch new products in a timely manner;

our increasing dependency on information technology to enable us to improve the effectiveness of our operations and to monitor financial accuracy and efficiency;

the implementation, including any modification, of our strategic operating plans;



the uncertainty regarding the outcome or expense of any litigation brought against or initiated by us; and

risks relating to our foreign operations, including fluctuations in exchange rates, tariffs, customs and other barriers to importing/exporting materials and products in a cost effective and timely manner; difficulties in accounts receivable collections; the burden of monitoring and complying with foreign and international laws and treaties; and the burden of complying with and change in international taxation policies.

Many of these risks, uncertainties and other factors are beyond our control and are difficult to predict.  Any or all of our forward-looking statements in this annual report may turn out to be inaccurate. We have based these forward-looking statements largely on our current expectations and projections about future events and financial trends that we believe may affect our financial condition, results of operations, business strategy and financial needs. New factors could also emerge from time to time that could adversely affect our business. The forward-looking statements herein can be affected by inaccurate assumptions we might make or by known or unknown risks, uncertainties and assumptions, including the risks, uncertainties and assumptions outlined above and described in Item 1A “Risk Factors” below.  In light of these risks, uncertainties and assumptions, the forward-looking events and circumstances discussed in this annual report may not occur and actual results could differ materially from those anticipated or implied in the forward-looking statements. When you consider these forward-looking statements, you should keep in mind these risk factors and other cautionary statements in this annual report including in Item 7 “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and in Item 1A “Risk Factors.”
 
Our forward-looking statements speak only as of the date made. We undertake no obligation to publicly update or revise forward-looking statements, whether as a result of new information, future events or otherwise. All subsequent written and oral forward-looking statements attributable to us or persons acting on our behalf are expressly qualified in their entirety by the cautionary statements contained in this annual report.
 
Unless the context requires otherwise, references in this Annual Report on Form 10-K to “Luminex,” the “Company,” “we,” “us” and “our” refer to Luminex Corporation and its subsidiaries.
 
___________________

Luminex®, xMAP®, xTAG®, NxTAG™, Luminex® 100/200™, Luminex® XYP™, Luminex® SD™, FLEXMAP 3D®, MicroPlex®, MAGPIX®, MagPlex®, SeroMAP™, xPONENT®, FlexmiR®, NeoPlex4™, LumAvidin®, MultiCode®, EraGen® and ARIES® are trademarks of Luminex Corporation.  This report also refers to trademarks, service marks and trade names of other organizations.



PART I
ITEM 1. BUSINESS

Overview

We develop, manufacture and sell proprietary biological testing technologies and products with applications throughout the diagnostics and life sciences industries.  These industries depend on a broad range of tests, called bioassays, to perform diagnostic tests and conduct life science research.

Our xMAP® (Multi-Analyte Profiling) technology, an open architecture, multiplexing technology, allows simultaneous analysis of up to 500 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, light emitting diodes (LEDs), digital signal processors, photo detectors, charge-coupled device imaging 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, and for clinical diagnostics, genetic analysis, bio-defense, food safety and biomedical research.  In addition to our xMAP technology, we have our proprietary MultiCode® technology, used for real-time polymerase chain reaction (PCR) and multiplexed PCR assays. During the fourth quarter of 2014, in conjunction with the appointment of our new CEO, Luminex evaluated its historical reporting segments: the technology and strategic partnerships (TSP) segment and the assays and related products (ARP) segment. As a result of this evaluation and based upon how our new Chief Executive Officer as Chief Operating Decision Maker (CODM) and our management team collectively is managing our business, we determined that the two former segments have become so integrated and interrelated that they no longer provide an accurate representation of our current business when reported separately. Additionally, we have taken actions to consolidate sales and service functions. Therefore, effective with the fourth quarter of 2014, we no longer have two operating segments and, accordingly, will present our business as one operating segment and one reporting unit. Accordingly, prior periods' information has been restated to conform to the current periods' presentation. Our products are described below under “Products.”

Our primary focus for growth is the development and sale of molecular diagnostic assays utilizing xMAP®, xTAG® and MultiCode technology on our installed base of systems. We utilize a direct sales model for sales of these products, which is intended to take advantage of our increasing installed base of xMAP-based instrumentation.  Our assays are primarily focused on multiplexed applications for the human molecular clinical diagnostics market. Our assay products are currently focused on three segments of the molecular diagnostic testing market: human genetics, personalized medicine and infectious disease. We have established our position in the marketplace through our global regulatory compliant product development and manufacturing processes,

We have established a position in several segments of the life sciences industry by developing and delivering products that meet customer needs in specific market segments, including multiplexing, accuracy, precision, sensitivity, specificity, reduction of labor and ability to test for proteins and nucleic acids. These needs are addressed by our proprietary technology, which allows the end user in a laboratory to perform biological testing in a multiplexed format. Multiplexing allows for many different laboratory results to be generated from one sample at one time. This is important because our end user customers and partners, which include laboratory professionals performing research and 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 per sample in a sequential manner, and if additional testing was required on a sample, a second procedure would be performed to generate the second result, and so on until all the necessary tests were performed. We have a full range of instruments in our xMAP line: our LX200 system offers 100-plex testing; our FLEXMAP 3D® system is our high-throughput, 500-plex testing system; and our MAGPIX® system provides 50-plex testing at a lower cost using imaging rather than flow cytometry. By using xMAP technology, the end users have the opportunity to become more efficient by generating multiple simultaneous results per sample. We believe that this technology may also offer advantages in other industries, such as in food safety/animal health, newborn screening and bio-defense/bio-threat markets. Using the products Luminex has available today, up to 500 simultaneous analyte results can be generated from a single sample.


1


A significant portion of our revenue is derived from our partnership channel. We license our xMAP technology to our partners, who then develop products that incorporate the xMAP technology into products that they sell to end users. We also develop and manufacture the proprietary xMAP laboratory instrumentation and the proprietary xMAP microspheres and sell these products to our partners. When our partners sell xMAP-based reagent consumable products or xMAP-based testing services, which run on the xMAP instrumentation, to end users, such as testing laboratories, we obtain a royalty on the sales from the partner. As of December 31, 2014 , we had 66 strategic partners, 46 of which have developed reagent-based products utilizing our technology. Luminex and these partners have sold approximately 11,700 xMAP-based instruments in laboratories worldwide as of December 31, 2014 .

Luminex was incorporated under the laws of the State of Texas in May 1995 and reincorporated in the State of Delaware in February 2000.  

Recent Events

CEO Transition

Our Board of Directors named Nachum "Homi" Shamir as President and CEO effective October 15, 2014. In addition, he was also elected to our Board of Directors. Patrick J. Balthrop, Sr. retired as President and CEO following ten years of service as our chief executive and also resigned as a director. Mr. Balthrop continues to serve the Company and its shareholders as a consultant to the Board and Mr. Shamir, and will be assisting in the transition through April 14, 2015.

Segment Reporting

During the fourth quarter of 2014, in conjunction with the appointment of our new CEO, Luminex evaluated its historical reporting segments: the TSP segment and the ARP segment. As a result of this evaluation and based upon how our new Chief Executive Officer as Chief Operating Decision Maker (“CODM”) and our management team collectively is managing our business, we determined that the two former segments have become so integrated and interrelated that they no longer provide an accurate representation of our current business when reported separately. Additionally, we have taken actions to consolidate sales and service functions. Effective with the fourth quarter of 2014, we no longer have two operating segments and, accordingly, will present our business as one operating segment and one reporting unit. Accordingly, prior periods' information has been restated to conform to the current periods' presentation.

Available Information

Our shares of common stock are traded on the Nasdaq Global Select 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 website address is www.luminexcorp.com . Our Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q, Current Reports on Form 8-K, and amendments to these reports filed or furnished pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, are available free of charge through our website as soon as reasonably practicable after such material is electronically filed with, or furnished to, the Securities and Exchange Commission, or the SEC.  Information contained or accessible on our website is not incorporated by reference into this report and such information should not be considered to be part of this report except as expressly incorporated herein.  The public may read and copy these materials at the SEC’s public reference room at 100 F Street, N.E., Washington, D.C. 20549 or on the SEC’s website at www.sec.gov U.   The SEC’s website contains reports, proxy and information statements, and other information regarding issuers that file electronically with the SEC.  Questions regarding the public reference room may be directed to the SEC at 1-800-732-0330.

Industry Background

The life sciences industry uses bioassays to detect the presence and characteristics of certain biochemicals, proteins or nucleic acids in a sample. Drug discovery, genetic analysis, pharmacogenomics, clinical diagnostics and general biomedical research all use bioassays. For example, bioassays can be used to:

measure the presence and quantity of substances such as infectious agents, antigens for histocompatibility, hormones, cancer markers and other proteins in a patient’s blood, other body fluid or tissue to assist physicians in diagnosing, treating or monitoring disease conditions;

detect genetic variations, such as single nucleotide polymorphisms or genetic mutations present in inherited diseases;

measure the response to a compound or dosage by measuring cellular activity for drug discovery and development; and

2



assist physicians in prescribing or dosing the appropriate drug therapy based on the patient’s genetic makeup, a field known as pharmacogenetics.

The life sciences customer can purchase bioassays in the form of complete off-the-shelf kits, develop them from scratch or utilize a customized service to meet their specific needs.

The table below briefly describes the key bioassay technologies in the life sciences industry:
 
KEY TECHNOLOGIES
DESCRIPTION
MARKETS SERVED
 
 
 
Sequencing
Instruments which “read” the nucleotide sequence of DNA or ribonucleic acid (RNA) by a variety of methods including Next Generation Sequencing methods
Biomedical research and clinical diagnostics
BioChips/Microarrays                                        
High-density arrays of DNA fragments or proteins attached to a flat glass or silicon surface
Biomedical research and clinical diagnostics
Automated Immunoassays
Automated test tube-based instruments used for detecting antibodies, proteins and other analytes
Clinical diagnostics
Gels and blots                                        
Physical separation of molecules or analytes for visualization
Biomedical research and clinical diagnostics
PCR methods                                        
Tests which use PCR technology to test DNA and RNA
Nucleic acid testing in clinical diagnostics and biomedical research
Microfluidics chips                                        
Miniaturized liquid handling system on a chip
Biomedical research and clinical diagnostics
Microtiter-plate based assays
Plastic trays with discrete wells in which different types of assays are performed, usually Enzyme-Linked Immuno-Sorbent Assay (ELISA) tests
Drug discovery, clinical diagnostics and biomedical research
Genotyping technologies                                        
DNA primers or probes designed to identify small differences between DNA targets
Drug discovery, clinical diagnostics and biomedical research
Gene expression technologies
DNA primers or probes designed to measure the degree of transcriptional activity of a specific gene, indicating how active the cells are in making the protein encoded by that gene
Drug discovery, clinical diagnostics and biomedical research

Our xMAP Technology

Our xMAP technology combines existing biological testing techniques with illumination, advanced digital signal processing, detection and proprietary software. With our technology, discrete bioassays are performed on the surface of color-coded microspheres. These microspheres are read in a compact analyzer that utilizes lasers or LEDs, detectors, charge-coupled device imaging and high-speed digital signal processing to simultaneously identify the bioassay and measure the individual assay results. The key features of xMAP technology include the following:

Multi-analyte/multi-format

xMAP technology has been designed to simultaneously perform up to 500 distinct bioassays in a single tube or well of a microtiter plate using only a small amount of sample. Moreover, unlike most existing technologies that are dedicated to only one type of bioassay, xMAP can perform multiple types of assays including enzymatic, genetic and immunologic tests on the same instrumentation platform.


3


Flexibility/scalability

xMAP technology allows flexibility in customizing test panels. Panels can be modified to include new bioassays in the same tube by adding additional microsphere sets. It is also scalable, meaning that there is no change in the manufacturing process and only minimal changes to the required labor to produce a small or large number of microsphere-based tests.

Both protein and nucleic acid applications on a single platform

xMAP technology has an advantage due to its ability to analyze both proteins and nucleic acids.  This allows customers to utilize a single platform to evaluate samples across more biological parameters and generate a more complete assessment of these samples.  Alternative technologies are typically restricted to either proteins or nucleic acid, requiring customers to use two or more technologies from other vendors to get the same information.

High throughput

Our technology can perform up to 500 tests in a single well permitting up to 96,000 unattended tests to be detected in approximately one hour with only a small amount of sample.  Rapid sample analysis permits efficient use for high-throughput applications.

Ease of use

Most xMAP-based bioassays are simple to perform. A test sample is added to a solution containing microspheres that have been coated with reagents. The solution is then processed through our xMAP technology system which incorporates proprietary software to automate data acquisition and analysis in real-time.

Cost effective

By performing multiple assays at one time, xMAP technology is designed to be cost effective for customers compared to competitive techniques such as ELISA or real-time PCR. By analyzing only those assays in which a customer is interested, xMAP is also more cost effective than most competing microarray technologies. In addition, microsphere-based bioassays are inexpensive compared to other technologies, such as biochips.

Two types of microspheres, polystyrene microspheres and polystyrene magnetic microspheres, are both fundamental components of the xMAP technology. We purchase and manufacture microspheres and, in a proprietary process, dye them with varying intensities of proprietary dyes to achieve up to 500 distinct colors. The specific dye proportions permit each color-coded microsphere to be readily identified based on its distinctive fluorescent signature. Our customers create bioassays by attaching different biochemical reactants to each distinctly colored microsphere set. These unique reactants bind, or capture, specific substances present in the test sample.  The microsphere sets can then be combined in test panels as required by the user, with a maximum of 500 tests per panel.  Customers can order either standard microspheres or magnetic microspheres.

To perform a bioassay using xMAP technology on our flow cytometry platforms, a researcher attaches biochemicals, or reagents, to one or more sets of color-coded microspheres, which are then mixed with a test sample. This mixture is injected into the xMAP analyzer such as the Luminex 200 instrument, or LX200, where the microspheres pass single-file in a fluid stream through two laser beams. The first laser excites the internal dyes that are used to identify the color of the microsphere and the test being performed on the surface of the microsphere. The second laser excites a fluorescent dye captured on the surface of the microspheres that is used to quantify the result of the bioassay taking place. Our proprietary optics, digital signal processors and software record the fluorescent signature of each microsphere and compare the results to the known identity of that color-coded microsphere set. The results are analyzed and displayed in real-time with data stored on the computer database for reference, evaluation and analysis.

We have a full range of instruments in our xMAP line. Our LX200 system offers 100-plex testing. Our FLEXMAP 3D® system is our high-throughput, 500-plex testing system and our MAGPIX® system provides 50-plex testing at a lower cost using imaging rather than flow cytometry.


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Our xTAG and MultiCode Technologies

Our xTAG technology consists of several components including multiplexed PCR or target identification primers, DNA Tags, xMAP microspheres and data analysis software.  xTAG technology permits the development of molecular diagnostic assays for clinical use by hospital and reference laboratories.  xTAG technology has been applied, in particular, to human genetic assays, pharmacogenetic assays and infectious disease assays.

Our MultiCode technology is based upon a unique assay chemistry that is a flexible platform for both real-time PCR and multiplex PCR-based applications. We have multiple molecular diagnostic assays based on the MultiCode platform. Our MultiCode technology is powered by a base pair (man-made nucleotide pair isoC:isoG in addition to the A:T and G:C nucleotide pairs found in nature) that does not exist in nature, but can be combined with natural base pairs, and incorporated into a wide range of molecular diagnostic applications. The MultiCode base pair is recognized by naturally occurring enzymes and can be used for the specific placement of reporter molecules and to increase the molecular recognition capabilities of hybridization-based assays. The MultiCode base pair enables solutions to complex molecular challenges that were previously not possible with natural nucleic acid alone.
 
We have multiple assay development activities ongoing and these activities are focused in the areas of infectious disease, human genetics, pharmacogenetics and bio-threat.  In 2015, we have plans to submit certain assay products to regulatory authorities, including the U.S. Food and Drug Administration (FDA) and foreign equivalents, for clearance in order to comply with established guidelines across the jurisdictions in which we participate.

Business Strategy

Our Company’s current focus is the transition from a technology-based tools company to a market-based diagnostic company and the establishment of Luminex as an industry leader and our xMAP and MultiCode technologies as the industry standards for performing molecular diagnostic bioassays. To achieve these objectives, we have implemented and are pursuing the following strategies:

Focus on key markets

We have identified the following key market segments: (i) molecular infectious disease, (ii) genetic or inherited disease, (iii) human leukocyte antigen (HLA) transplant diagnostics, (iv) pharmacogenetic testing, (v) immunodiagnostics, (vi) life sciences research, and (vii) bio-defense, or bio-threat testing. We will continue to employ a combination of both a partnership-driven business model and a product-driven business model focused on selected market segments and bioassay applications.

Develop and deliver market-leading molecular diagnostic platforms and assays

Our acquisitions and research and development have expanded the breadth of technology and solutions we offer our customers to meet their needs. We acquired the MultiCode RTx real-time PCR technology for both quantitative and qualitative low-plex real-time assays and GenturaDx and its IDbox sample-to-answer platform, which is compatible with our MultiCode RTx technology, to provide our customers with molecular assays that are easy to implement. A key focus currently is the final development of our ARIES® system. The ARIES sample-to-answer instrument, when combined with our proprietary real-time PCR chemistry and a new menu of highly automated assays that we are developing, is designed to enable us to offer a differentiated, easy to use solution. ARIES is designed to help labs overcome today's challenges: seeking to avoid healthcare cost increases while maintaining quality, the scarcity of highly trained personnel and limited lab bench space with its barcode data entry, efficient workflow, importance of slim design that occupies minimal bench space, universal protocols that enable true walkaway automation, and ability to simplify laboratory developed tests (LDTs).
 

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Develop next generation products

We are focusing resources on improving the simplicity and ease of use of our multiplex products through the development of a new version of our multiplex PCR technology. This new NxTAG™ chemistry is expected to enable customers to experience streamlined workflow without sacrificing throughput. We recognize that the crucial aspect of our current technology that we want to preserve for our larger customers is the ability to process anywhere from 1 to 96 patients in a single batch. This throughput flexibility and capacity is a crucial aspect for tests like our xTAG Respiratory Viral Panel (RVP), in which seasonality and local outbreaks can cause testing volumes to surge unpredictably. We intend to offer the convenience of a one-step workflow with the throughput of a batch-based system. In addition, products using this new chemistry are expected to have the convenience of room temperature shipping and storage. We intend to release our NxTAG Respiratory Pathogen Panel (RPP) product in 2015. Additionally, we continue pursuing projects such as the development of consumables, automation, software and the expansion and enhancement of our multiplexing capabilities to advance our technologies and market acceptance.

We have developed a full range of multiplexing instruments and consumables to cover a broad range of customer applications and budgets.  We have developed, and continue to improve, the xTAG multiplex PCR chemistry for our proprietary multiplex assays in areas such as human genetic testing, personalized medicine testing and infectious disease testing.  All of these technology solutions provide our customers with a breadth of innovative solutions to meet their many testing needs.
 
In addition, we are collaborating with industry participants, biomedical research institutions and government entities to develop additional products. We continuously consider other adjacent markets where our platform and assay offerings would be beneficial.

Opportunistically pursue acquisitions that could accelerate our business strategies

We utilize analytical tools and an evaluation template to assess potential acquisition targets to accelerate our business strategies in the key markets described above. This approach led to several successful acquisitions historically, including the most recent acquisition of GenturaDx in 2012, which is the foundation of our new ARIES platform in development. We actively evaluate opportunities to enhance our capabilities or our access to targeted markets or technologies, or provide us other advantages in executing our business strategies in our key markets.

Continue to develop the partnership channel focused in select key markets
 
As of December 31, 2014 , 46 of our 66 strategic partners have developed and commercialized xMAP based assay products and are submitting royalties.  We also have strategic partners who distribute Luminex products.  During 2014 , the 46 strategic partners who have commercialized xMAP based assay products accounted for approximately 66% of our total revenue and all of our strategic partners represented approximately 71% of our total revenue. We intend to continue pursuing opportunities to expand market acceptance of xMAP technology through development, marketing and distribution partnerships with leading companies in the life sciences markets. By leveraging our strategic partners’ market positions and utilizing their distribution channels and marketing infrastructure, we believe we can continue to expand our installed instrument base.  Furthermore, our partners’ investments in research and development for xMAP applications provide Luminex xMAP customers with more assay product options than any one company or Luminex could develop and commercialize individually.

We will continue to focus our commercialization efforts through our strategic partners covering large sectors of the life science research market where Luminex believes it has competitive advantages over alternative technologies and approaches. We define strategic partners as those companies in the life sciences markets that develop and distribute assays and tests on xMAP technology or may only distribute our xMAP technology based systems and consumables.  With our partners’ support and through our direct commercial efforts in the molecular diagnostics clinical laboratory segment, we have targeted major pharmaceutical companies, large clinical laboratories, research institutions and major medical institutions for our principal marketing efforts. We believe these customers provide the greatest opportunity for maximizing the use of xMAP based products and continued adoption by these industry leaders will promote wider market acceptance of our xMAP technology.
 

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Products

Instruments

Luminex® LX 100/200™ (LX Systems). The LX Systems are compact analyzers that integrate fluidics, optics and digital signal processing to perform up to 100 bioassays simultaneously in a single tube or well of a microtiter plate using only a small amount of sample. By combining semiconductor lasers with digital signal processors and microcontrollers, these systems perform rapid, multi-analyte profiles under the control of a Windows®-based personal computer and our proprietary software.

FLEXMAP 3D® .  The FLEXMAP 3D system is intended for use as a general laboratory instrument in markets, including but not limited to, life science research and diagnostics. This device can simultaneously measure up to 500 analytes from a single sample and offers increased speed and enhanced ease-of-use and serviceability.   Like our LX Systems, the FLEXMAP 3D system combines semiconductor lasers with digital signal processors and microcontrollers and these systems perform rapid, multi-analyte profiles under the control of a Windows®-based personal computer and our proprietary software.
 
MAGPIX®. The MAGPIX system is a versatile multiplexing analyzer capable of performing qualitative and quantitative analysis of proteins and nucleic acids in a variety of sample matrices.  This system can perform up to 50 tests in a single reaction volume, reducing sample input, reagents and labor while improving productivity.  MAGPIX is based on an innovative detection mechanism that uses LEDs and a charge-coupled device ( CCD) imaging system, rather than the lasers and detection mechanisms used in our flow cytometry-based instruments.

Consumables

MicroPlex® Microspheres. Our xMAP systems use polystyrene microspheres that are approximately 5.6 microns in diameter. We dye the microspheres in sets with varying intensities of a red and a near infrared dye to achieve up to 100 distinct color sets. Each microsphere can carry the reagents of an enzymatic, genetic or immunologic bioassay.

MagPlex® Microspheres.   These microspheres feature super-paramagnetic properties that make them ideal for running automated xMAP-based assays.  We dye the microspheres in sets with varying intensities of a red and a near infrared dye to achieve up to 500 distinct color sets.  These microspheres can be moved or held in place by a magnetic field. Many automated systems utilize magnetic properties to automate the performance of the assay. Automating sample testing using MagPlex microspheres on a robotic sample preparation system decreases hands-on technician time, improves precision, and streamlines workflow.

xTAG® Microspheres. These dyed microspheres are linked to a set of 100 proprietary nucleic acid capture sequences providing a “universal array” for DNA and RNA work.  They are designed for conducting genotyping and other nucleic acid-based experiments in the life sciences markets. When used in conjunction with our Luminex systems, the xTAG microspheres are designed to simplify the genotyping assay development process and increase assay flexibility. The xTAG microspheres may be used in customized end user identified single nucleotide polymorphisms or in pre-defined kits developed by our strategic partners.

SeroMAP™ Microspheres.   These 100 distinct sets of microspheres are designed for specific protein based serological applications.  Certain Luminex partners use this product for enhanced sensitivity in serum-based assays.

Calibration and Control Microspheres.   Calibration microspheres are microspheres of known fluorescent light intensities used to calibrate the settings for the classification and reporter channel for the Luminex systems.  Control microspheres are microspheres that are used to verify the calibration and optical integrity for both the classification and reporter channels for the various systems.

Software

xPONENT®.   Our xPONENT software is included in all of our new instruments and enhances both ease-of-use and automation capabilities expanding xMAP functionality in our core markets. The software suite incorporates important features, all designed to simplify laboratory workflow and increase productivity, including: enhanced security (21 CFR Part 11 compliance and electronic signatures); integration capabilities that allow users to transmit and receive data from Laboratory Information Systems (LIS/LIMS); integration with the most popular automated sample preparation systems; the ability to run magnetic bead applications; and touch-screen capability. xPONENT is sold on new Luminex 100, 200, FLEXMAP 3D, and MAGPIX systems and is available as an upgrade to the existing LX systems in the marketplace.


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Assay Product Families

A product family consists of two or more assay products which are focused on similar or related markets.  Each assay consists of a combination of chemical and biological reagents and our proprietary bead technology used to perform diagnostic and research assays on samples.  As of February 23, 2015 the following product families are commercially available:
 
Respiratory Viral Family

This family of products includes RVP, as well as xTAG RVP FAST, a newer version of the original RVP assay.   These in vitro diagnostic (IVD) products enable our laboratory end users to identify the causative agent for respiratory infections, a major cause of illness and mortality globally, for physicians and their patients.

Gastrointestinal Pathogen Detection Family

The Gastrointestinal Pathogen Panel (GPP) family of products includes IVD assays as well as individual analyte specific reagents, which can be developed by Clinical Laboratory Improvement Amendments labs into laboratory developed tests.  These products enable laboratory end users to identify the pathogens causing infectious gastroenteritis, which is a major cause of morbidity and mortality globally.

MultiCode Assays and Products Family

This product family includes our FDA-cleared HSV1/2 kit as well as a number of analyte specific reagents and other products.  These products are generally designed to detect infectious agents in clinical samples using our proprietary MultiCode RTx real-time PCR chemistry.

Cystic Fibrosis Family

These FDA-cleared and Conformité Européenne   (CE) marked IVD kits include the first-ever FDA-cleared IVD for cystic fibrosis genotyping.  Current recommendations by the American College of Medical Genetics and the American College of Obstetricians and Gynecologists include screening for 23 mutations in the cystic fibrosis transmembrane conductance regulator gene. The xTAG Cystic Fibrosis kits screen for these mutations in addition to a variety of other important cystic fibrosis (CF) mutations, commonly found in the ethnically diverse North American and European populations.  These kits are typically used for screening newborns and for diagnosing adult carriers of the CF gene.

Personalized Medicine Product Family

This product family includes three assays used to determine the drug metabolism status of individuals for specific medications.  All three products include genotyping of genes encoding different cytochrome P450 drug metabolizing enzymes.  This type of  information is typically used to determine if a patient will need a lower or higher dose of a specific drug, or whether they should be switched to a different medication altogether.  Two of the products in this category are the FDA-cleared CYP2D6 and CYP2C19 assays used for identifying patients with variants that affect the metabolism and efficacy of some pharmaceutical compounds.

Specialty Product Family and Instrumentation

This family of products includes a variety of assays targeted towards specialty, niche markets.

In addition to the commercially available assays, we are an original equipment manufacturer (OEM) of custom reagents and instrumentation for certain of our customers. 

Sales and Marketing

Our sales and marketing strategy is to expand the installed base and utilization of xMAP, xTAG and MultiCode technologies.  We are focused on generating recurring revenues from the sale of Luminex-developed assays, microspheres and other consumables, as well as from royalties on bioassay kits and testing services developed or performed by others that use our technology. We have two key elements of our sales and marketing strategy: i) our dedication to marketing the assays developed internally directly to end users and ii) our allegiance to Luminex’s historic strategic partner program with life sciences companies that develop applications or perform testing using our technology platforms and distribute our systems to their customers.


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We continue to use strategic partners as the primary distribution channel for our systems, and we will continue to pursue new partnerships focusing on partners with market presence in our key segments described above.  Some of our strategic partners develop application-specific bioassay kits for use on our xMAP platform that they, in turn, sell to their customers thereby generating royalties for us. Certain strategic partners also perform testing services for third parties using our technology also resulting in royalties for us.  Other strategic partners buy our products, including xMAP Luminex systems and consumables, or xTAG test kits, and then resell those products to their customers. As of December 31, 2014 , we had 66 strategic partners, compared to approximately 58 strategic partners as of December 31, 2013 .  On a regular basis, we update our strategic partner listing to reflect results of partner consolidations due to mergers and acquisitions, commercial sales inactivity, as well as termination or expiration of existing non-performing partner agreements, which in 2014 did not account for material revenue. During 2014 , 48 strategic partners with commercialized products utilizing xMAP technology submitted royalties. As of December 31, 2014 , 46 of these strategic partners with commercialized products remain, of which 24 companies principally serve the clinical diagnostics market and 22 companies principally serve the life science research market. Revenues through these commercialized, royalty-submitting, strategic partners constituted 66% of our revenues for 2014 . We also believe our strategic partners provide us with complementary capabilities in product development, regulatory expertise and sales and marketing. By leveraging our strategic partners’ bioassay testing competencies, customer relationships and distribution channels, we believe that we can continue to achieve measurable market penetration and technology adoption.

We also serve as the OEM for certain strategic partners that choose to sell our xMAP technology as an embedded system under their own branding and marketing efforts.

Customers

In each of the last three years, one or more customers each accounted for more than 10% of our total revenues. Laboratory Corporation of America (LabCorp) accounted for 21% , 18% and 19% of our total revenues in 2014 , 2013 and 2012 , respectively.  Thermo Fisher Scientific, Inc. accounted for 17% , 17% and 24% of our total revenues in 2014 , 2013 and 2012 , respectively.  No other customer accounted for more than 10% of our total revenues in 2014 , 2013 or 2012 ; however, Bio-Rad Laboratories, Inc. accounted for 7% , 9% and 8% of our total revenues in 2014 , 2013 and 2012 , respectively. The loss of any of these customers could have a material adverse effect on our business, financial condition and results of operations.

International Operations

We currently sell our products to a number of customers outside the United States, primarily including customers in other areas of North America, Europe and Asia-Pacific.  For the annual periods ended December 31, 2014 , 2013 and 2012 , foreign sales to customers totaled $39.0 million, $35.1 million, and $34.7 million, respectively, representing 17%, 16% and 17%, respectively, of our total revenues for such periods.  We have foreign subsidiaries in Canada, the Netherlands, Australia, the People’s Republic of China and Japan, which increase our international support, service and marketing capabilities.  Our foreign subsidiaries are a direct and integral component of the U.S. entity’s operations and their efforts support the sales made by our North American entities.  Sales to territories outside of the U.S. are primarily denominated in U.S. dollars.  We believe that our activities in some countries outside the U.S. involve greater risk than our domestic business due to the foreign economic conditions, exchange rate fluctuations, local commercial and economic policies and political uncertainties.  See Note 19 to our Consolidated Financial Statements.

Technical Operations

Our Technical Operations Group provides technical support to our customers, our distributors, our strategic partners and their customers. Most of our technical operations personnel have experience as biologists, biochemists or electrical engineers and have extensive experience in academic, industrial and commercial settings. Cross training is a major focus, as is empowering group members to solve problems outside their primary assignment.

Remote Support

Our technical support department assists users primarily through a toll-free hotline, internet interface and e-mail communications.  We deliver “24/7” remote technical support with our staff based at our Austin and Toronto locations and from our European, Chinese and Japanese subsidiaries to better serve our customer base.  Personnel assist our distributors, strategic partners and customers with product orders, software, hardware, system implementation and development of their bioassays. A comprehensive software and database system is utilized to track customer interactions, follow trends and measure utilization. The information is categorized and presented to management for regular review.


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Training

Through our training group, we offer comprehensive programs in basic system training, advanced assay development, instrument field service and technical support functions. A significant part of our training material is now web-based and available online.  For larger customers who have many users, such as our strategic partners, training may be performed on-site at their locations.

Field Support

We currently have field service and field application personnel based across North America, Europe, China and Japan in areas of our more significant system concentration. We intend to place additional field service personnel and pursue third-party service provider agreements through our certified service professional program, as required, in order to ensure responsive and cost-effective support of our customers worldwide.  In addition, several of our distributors and strategic partners provide their own field service and field application support. As we continue to expand our installed base, we believe a strong, reliable, efficient field support organization is crucial to maintaining a high level of customer satisfaction.

Research and Development

Our research and development groups work to develop next generation systems, chemistries, assays and software to provide new, innovative products to our customers. Our research and development expense for the years ended December 31, 2014 , 2013 and 2012 , was $43.1 million , $45.0 million and $43.0 million , respectively including customer-sponsored research funding of $ 0.7 million , $0.8 million , and $1.1 million , respectively.

Our current research and development projects include:

New platform development

We have continued the development of the ARIES instrument for sample-to-answer molecular diagnostic automated testing. This involves the final design and development of the instrument, consumables and software, as well as the development of a menu of assay products based on the ARIES platform. The ARIES system is expected to launch in 2015.

Simplified assay products

Our research and development group has been working on the development of a new, easy-to-use chemistry for running multiplexed tests in 96-well plates. This chemistry is expected to combine our xTAG and xMAP technologies into a simple to use, closed-tube format. The first product using this streamlined format, the NxTAG RPP, is expected to launch in 2015.

Partnership projects

Our research and development group is collaborating with Merck on the development of a companion diagnostic that will help screen patients into Merck's investigational candidate drug study for Alzheimer's disease. Luminex is also working with the Defense Threat Reduction Agency of the United States government to develop a hand-held diagnostic instrument. Luminex on occasion collaborates on other partnered research programs.

Manufacturing

We have historically purchased many of the components and raw materials used in our products from numerous suppliers worldwide. For reasons of quality assurance, sole source availability or cost effectiveness, certain components and raw materials used in the manufacture of our products are available only from one supplier. We have worked closely with our suppliers to develop contingency plans to assure continuity of supply while maintaining high quality and reliability, and in some cases, we have established long-term supply contracts with our suppliers.  Due to the high standards and FDA requirements applicable to the manufacturing of our products, we may not be able to quickly establish additional or replacement sources for certain components or materials. In the event that we are unable to obtain sufficient quantities of raw materials or components on commercially reasonable terms or in a timely manner, our ability to manufacture our products on a timely and cost-competitive basis may be compromised, which may have a material adverse effect on our business, financial condition and results of operations.


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We have approximately 60,700 square feet of manufacturing space located at our principal executive offices in Austin, Texas.  We recently expanded this space to enable ARIES cassette automation. We initially certified our Quality Management System (QMS) to the ISO 9001:2000 standard and in 2010 updated our certification to ISO 9001:2008.  ISO is an internationally recognized standard for quality management systems.  Subsequent audits by the registrar have been and will continue to be carried out at regular intervals to ensure we are maintaining our system in compliance with ISO standards.  Recertification is required every three years and we have been successfully recertified since obtaining our original ISO certification.  Also, we have our QMS certified to the ISO 13485:2012 Quality Management Standard and the Canadian Medical Devices Conformity Assessment System (CMDCAS) for Medical Devices.  These standards include a special set of requirements specifically related to the supply of medical devices and related services.  Additionally, we seek to manufacture to current Good Manufacturing Practice requirements and our QMS is implemented in accordance with FDA Quality System Regulations.

In addition, we have approximately 6,000 square feet of manufacturing space located in Toronto, Canada and approximately 10,000 square feet of manufacturing space located in Madison, Wisconsin.  The Toronto and Madison facilities and related QMS have been certified to the ISO 13485:2012 standard and registered under the CMDCAS.

Instruments

Contract manufacturers assemble certain components of our xMAP technology systems. The remaining assembly and manufacturing of our systems are performed at our facility in Austin, Texas. The quality control and quality assurance protocols are all performed at our facility.  Parts and component assemblies that comprise our xMAP technology system are obtained from a number of sources.  We have identified alternate sources of supply for several of our strategic parts and component assemblies.  Additionally, we have entered into supply agreements with most of our suppliers of strategic parts and component subassemblies to help ensure component availability and flexible purchasing terms with respect to the purchase of such components.  As of December 31, 2014 , a total of 11,687 Luminex multiplexing analyzers had been shipped since inception.

Microspheres

We manufacture as well as procure undyed, standard and magnetic carboxylated polystyrene microspheres.  We synthesize our dyes and manufacture our dyed polystyrene microspheres using a proprietary method in our Austin, Texas manufacturing facility in large lots.  We dye the microspheres with varying intensities of red and near infrared dyes to produce our distinctly colored microsphere sets. We currently purchase polystyrene microspheres from one supplier, in accordance with a supply agreement. We believe this agreement will help ensure microsphere availability and flexible purchasing terms with respect to the purchase of such microspheres. While we believe the microspheres will continue to be available from our supplier in quantities sufficient to meet our production needs, we believe our in-house manufacturing capabilities along with other potential suppliers would provide sufficient microspheres for us if given adequate lead-time to manufacture the microspheres to our specifications.

Assays and Reagents

Contract manufacturers produce certain components of our xMAP-based and MultiCode-based developed reagents. The remaining assembly and manufacturing of our developed kits are performed at one of our facilities in Austin, Texas; Toronto, Canada; or Madison, Wisconsin. The quality control and quality assurance protocols are all performed at our facilities.  Reagents, consumables and other raw material that comprise our kits are obtained from a number of sources.

Increasing regulatory requirements coupled with rising demand for new clinical applications are driving demand for laboratory developed tests. Our proprietary technologies and platforms offer a unique combination of flexibility and throughput, as our systems' open architecture, software and standard protocols allow our customers the ability to use our proprietary reagents to validate and verify a new test, while being able to utilize the same system to handle increasing volumes once the assay is commercialized.

Backlog

Our backlog as of December 31, 2014 and December 31, 2013 totaled $7.0 million and $5.8 million, respectively. Backlog consists of customer orders for which a delivery schedule within the next twelve months has been specified. Orders included in backlog may be canceled or rescheduled by customers without significant penalty. Backlog as of any particular date should not be relied upon as indicative of our net revenues for any future period.


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Competition

We design our xMAP technology for use by customers across the various segments of the life sciences industry. Our competition includes companies marketing conventional testing products based on established technologies such as ELISA, real-time PCR, mass spectrometry, sequencing, gels, biochips and flow-based technologies as well as companies developing their own advanced testing technologies.

The pharmaceutical industry is a large market for the genomic, protein and high-throughput screening applications of the xMAP technology. In each application area, Luminex faces a different set of competitors. Genomic and protein testing can be performed by products available from Affymetrix, Inc., Life Technologies Corporation (a Thermo Fisher Scientific, Inc. brand), Becton, Dickinson and Company, Illumina, Inc., Qiagen N.V., Meso Scale Discovery (a division of Meso Scale Diagnostics LLC), and PerkinElmer, Inc., among others.

Our diagnostic market competitors include, among others, Abbott Laboratories, Life Technologies Corporation (a Thermo Fisher Scientific, Inc. brand), BioFire Diagnostics, Inc. (a bioMérieux company), Cepheid, GenMark Dx, Johnson & Johnson, Roche Diagnostics, Siemens Medical and Hologic, Inc., Alere, Inc., Quidel Corporation and Illumina, Inc. Some of these companies have technologies that can perform a variety of established assays. In addition, certain of these companies offer integrated systems and laboratory automation that are designed to meet the need for improved work efficiencies in the clinical laboratory.

Competition within the academic biomedical research market is highly fragmented. There are hundreds of suppliers to this market including, among others, Amersham Pharmacia Biotech, a part of GE Healthcare, Life Technologies Corporation and Becton, Dickinson and Company.

Intellectual Property
 
To establish and protect our proprietary technologies and products, we rely on a combination of patent, copyright, trademark and trade secret laws and confidentiality agreements.  We have filed for registration or obtained registration for trademarks used with our products and key technologies. 

We have implemented a strategy designed to optimize our intellectual property rights. For core intellectual property, we are pursuing patent coverage in the United States and those foreign countries that correspond to the majority of our current and anticipated customer base. We currently own 315 issued patents worldwide, including over 124 issued patents in the United States. Other countries in which we have issued patents directed to various aspects and applications of our products and technology include France, Germany, United Kingdom, Australia, Japan, Netherlands, Canada, Hong Kong and China, amongst others. In addition, our patent portfolio includes 162 pending patent applications in the United States and other foreign jurisdictions.  We believe our patents and pending claims provide, or will provide, protection for systems and technologies that allow real-time multiplexed analytical techniques for the detection and quantification of many analytes from a single sample. We also hold patents covering the precision-dyeing process used in the manufacture of our fluorescent microspheres and patents covering digital over-sampling to measure the area of a fluorescence pulse instead of “peak detection,” giving increased sensitivity with no lost events. In addition, multiple granted patents and pending applications describe aspects of Multicode technology, xTAG technology, as well as ARIES, our automated real-time PCR system, and NxTAG technology.
 
The source code for our proprietary software is protected as a trade secret and/or as a copyrighted work. Aspects of this software also are covered by an issued patent.

We also rely on trade secret protection of our intellectual property. We attempt to protect our trade secrets by entering into confidentiality agreements with strategic partners, third parties, employees and consultants. Our employees and third-party consultants also sign agreements requiring that they assign to us their interests in inventions and original works of expression and any corresponding patents and copyrights arising from their work for us. See risk factor on property rights we rely upon to protect the technology underlying our products on page 22.


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Government Regulation

Food and Drug Administration

The FDA regulates medical devices pursuant to various statutes, including the Federal Food, Drug and Cosmetic Act as amended and supplemented by the Medical Device Amendments of 1976; the Safe Medical Devices Act of 1990; the Medical Device Amendments of 1992; the FDA Export Reform and Enhancement Act of 1996; the FDA Modernization Act of 1997; the Public Health, Security and Bioterrorism Preparedness and Response Act of 2002; the Medical Device User Fee and Modernization Act of 2002; and the Project BioShield Act of 2004. Medical devices, as defined by statute, include instruments, machines, in vitro reagents or other similar or related articles, including any components, parts or accessories of such articles that are intended for use in the diagnosis of disease or other condition or in the cure, mitigation, treatment or prevention of disease; or are intended to affect the structure or function of the body and do not achieve their intended purpose through chemical action or metabolization. The FDA classifies medical devices intended for human use into three classes. For Class I devices, general controls (for example, labeling and Good Manufacturing Practices) provide reasonable assurance of safety and effectiveness. Class II devices are products for which general controls do not provide reasonable assurance of safety and effectiveness and for which there is sufficient information to establish special controls (for example, special control documents, guidelines and patient registries). Class III devices are products for which neither general nor special controls provide reasonable assurance of safety and effectiveness.  Generally, Class III includes devices that support or sustain human life, are for uses that are substantially important in preventing impairment of human health, are used as a stand-alone assay for patient screening or diagnosis of disease, or present a potential, unreasonable risk of illness or injury.

We manufacture versions of the Luminex instruments for use with diagnostic assay kits that are available through our strategic partners. For FDA purposes, the Luminex systems are IVD cleared and are considered a component of our partners’ kit products. Depending on the particular kit’s regulatory classification into Class I, II, or III and its intended use, kits manufactured by our strategic partners that are used in conjunction with our technology are subject to FDA requirements such as Good Manufacturing Practices and others, and may be subject to clearance or approval before they can be marketed and sold. After incorporating the Luminex systems into their products, our strategic partners may be required to make various premarket submissions such as premarket approval applications, premarket notifications, and/or investigational device exemption applications to the FDA for their products and are required to comply with numerous requirements and restrictions prior to clearance or approval of the applications. Our partners are also subject to a number of other requirements in the Food, Drug, and Cosmetic Act and its regulations, such as Good Clinical Practice requirements and Device Registration and Listing requirements. There can be no assurance that such requirements will always be met without interruption, or that the FDA will file, clear or approve our strategic partners’ submissions. A total of 53 Luminex products have been cleared, licensed or registered in 2014, including 3 products cleared for use by the FDA in the United States and 50 products cleared, licensed or registered for use in foreign jurisdictions.

We also manufacture kit products that are intended for research use only (RUO) applications (not for diagnostic use), as well as kits that are IVD cleared for diagnostic use (currently regulatory classification of Class I and II), as well as IUO or clinical applications. Although certain products intended for research use only are not currently subject to clearance or approval by the FDA, research use only products fall under the FDA’s jurisdiction if they are used for clinical rather than research purposes. Further, even where a product is not otherwise subject to clearance or approval by the FDA, the FDA, in order to limit sales to those who use the products for research only, can determine the manner in which we can market and sell our products and/or the types of customers to which we can market and sell our products.

In addition to the FDA, the U.S. Department of Health and Human Services, state authorities and foreign government regulators scrutinize genetic analysis tools that are labeled for research use only by clinical laboratories. We cannot predict the nature of future regulatory or policy initiatives with respect to the sale and use of products for the development of assays by laboratories, or the extent to which any such initiative will impact our business.
      
The laboratories that purchase certain of our products are subject to extensive regulation under the Clinical Laboratory Improvement Amendments of 1988 (CLIA), which require laboratories to meet specified standards in areas such as personnel qualifications, administration, participation in proficiency testing, patient test management, quality control, quality assurance, and inspections. Adverse interpretations of current CLIA regulations or future changes in CLIA regulations could have an adverse effect on sales of any affected products.
      

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In December 2007, we submitted to the FDA our request for 510(k) clearance on our Luminex LX 100/200 Instrument. On December 13, 2007 the FDA received our 510(k) #k073506 submission for the Luminex LX 100/200 IS System.  On March 7, 2008, the instrument received FDA 510(k) clearance.  All related future diagnostic assay kits subject to FDA clearance may reference the 510(k) #k073506 for the instrument in their respective applications.  A master file letter from Luminex allowing the partner to reference the file may be required.  Subsequent clearances for FLEXMAP 3D and MAGPIX were received by the FDA on January 9, 2013 and March 21, 2013, respectively.

Certain of our instruments use lasers to identify the bioassays and measure their results. Therefore, we are required to ensure that these products comply with FDA regulations pertaining to the performance of laser products. The Radiation Control for Health and Safety Act, administered by the FDA, imposes performance standards and record keeping, reporting, product testing and product labeling requirements for devices that emit radiation.  These regulations are intended to ensure the safety of laser products by establishing standards to prevent exposure to excessive levels of laser radiation. There can be no assurance that the FDA will agree with our interpretation and implementation of these regulations.

We, and our strategic partners, are subject to periodic inspection by the FDA for, among other things, compliance with the FDA’s current Good Manufacturing Practice regulations. These regulations, also known as the Quality System Regulations, govern the methods used in, and the facilities and controls used for, the design, manufacture, packaging, labeling, servicing, installation and distribution of all finished medical devices intended for human use. Additionally, our strategic partners are subject to other pre-market and post-market controls such as labeling, complaint handling, medical device reporting, corrections and removals reporting and record keeping requirements. If the FDA has evidence demonstrating that a company is not in compliance with applicable regulations, it can detain or seize products, request or, in certain circumstances, require a recall, impose operating restrictions, enjoin future violations, recommend criminal prosecution to the Department of Justice and assess civil and criminal penalties against us, our officers and our employees. Other regulatory agencies may have similar powers. In addition, various federal and state statutes and regulations govern or influence the manufacturing, safety and storage of our products and components of our products, as well as our record-keeping.

Foreign Jurisdictions

Medical device laws and regulations are also in effect in many countries outside of the United States. These range from comprehensive pre-approval requirements for medical products to simpler requests for product data or certification. The number and scope of these requirements are increasing. There can be no assurance that we, and our strategic partners, will be able to obtain any approvals that may be required to market xMAP technology products outside the United States. In addition, we may incur significant initial and/or ongoing costs in obtaining or maintaining our foreign regulatory approvals. Further, the export by us of products that have not yet been cleared for domestic commercial distribution is subject to FDA or other export requirements and/or restrictions.

We have agreements relating to the sale of our products to government entities and, as a result, we are subject to various statutes and regulations that apply to companies doing business with the government. A failure to comply with these regulations could result in suspension of these contracts, or administrative or other penalties, and could have a material adverse effect on our ability to compete for future government contracts and programs.

We produce CE marked products, which are subject to a number of different European Union (EU) Directives, including, but not limited to, the In Vitro Diagnostic Devices Directive (98/79/EEC). CE marking of our products is currently by self-declaration, not issued by a third party, based on the intended uses of our products.  A product that is not CE marked is automatically considered to be non-compliant. The law is enforced through market surveillance by appointed national enforcement agencies.  Imported products are checked for compliance at customs offices.

The State Food and Drug Administration, P.R. China, is the government regulation authority in charge of safety management of drug, food, health food and cosmetics for the People’s Republic of China. In December 2007 we submitted the application for a certificate to combine both Luminex 100 and Luminex 200 into one product called "Luminex System".  This certificate is required for registration and approval to import our products into China.  Luminex received the registration certificate from the People’s Republic of China for the Luminex 100 and Luminex 200 Systems on March 4, 2009 and received recertification on October 17, 2013.  The MAGPIX System received its registration certificate on June 16, 2014. Such re-certifications are an ongoing requirement with the People’s Republic of China.

Failure by us, or our strategic partners, to comply with applicable federal, state and foreign medical product laws and regulations could have a material adverse effect on our business. In addition, federal, state and foreign regulations regarding the manufacture and sale of medical devices and components of such devices are subject to future changes. We cannot predict what impact, if any, such changes might have on our business, but any such change could have a material impact.

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WEEE

The European Community Council Directive 2002/96/EC on Waste Electrical and Electronic Equipment (WEEE) outlines the responsibility for the disposal of waste electrical and electronic equipment. Compliance with WEEE is placed with the manufacturers of such equipment.  Those manufacturers are required to establish an infrastructure for collecting WEEE, in such a way that users of electrical and electronic equipment from private households should have the ability of returning WEEE at least free of charge.  All Luminex-manufactured equipment is in compliance with this directive. We have been in compliance with the requirements since August 13, 2005, regarding the labeling and disposal of our products containing electronic devices in each of the EU member states where our regulated products are distributed.

RoHS

RoHS stands for “The Restriction on the Use of Certain Hazardous Substances in Electrical and Electronic Equipment” and implements EU Directive 2002/95 which bans the placing on the EU market of new electrical and electronic equipment containing more than agreed levels of lead, cadmium, mercury, hexavalent chromium, polybrominated biphenyl and polybrominated diphenyl ether flame retardants. 
 
The Directive directly affects producers who manufacture or assemble electrical or electronic equipment in the EU, importers of electrical or electronic equipment from outside the EU and companies that re-brand electric producers as their own. The Directive applies to electrical and electronic equipment falling under the categories 1, 2, 3, 4, 5, 6, 7 and 10 set out in Annex IA of the WEEE Directive (2002/96/EC).  Equipment categories 8 and 9 defined in the WEEE Directive are currently outside the scope of the RoHS Directive.  Luminex IVD equipment is classified as category 8 (Medical Devices) in Annex IA of the WEEE Directive, which is not covered within the scope of the RoHS Directive.  Luminex research equipment is classified as category 9 (Monitoring and Control Instruments) in Annex IA of the WEEE Directive, which is not covered within the scope of the RoHS Directive.

European IVD Directive

The EU’s regulation of in vitro medical devices is under the In Vitro Diagnostic Directive (IVDD) 98/79/EC of October 27, 1998, as implemented in the EU member states.

The principle behind the IVDD is that no in vitro device or accessory may be placed on the market or put into service unless it satisfies the essential requirements set forth in the IVDD. Devices considered to meet the essential requirements must bear the CE marking of conformity when they are placed on the market. The responsibility for placing the CE marking on the device lies with the manufacturer. A manufacturer placing devices on the market in its name is required to notify its national competent authorities.

Luminex has declared that the LX100 IS, the LX200 IS, the FLEXMAP 3D and the MAGPIX are classified as self-declaration devices and are in conformity with Article 1, Article 9, Annex I (Essential Requirements), and Annex III and the additional provisions of IVDD 98/79/EC.  However, there can be no assurance that the EU member states will agree with our interpretation and implementation of these regulations. As the European marketplace continues to be material to our operations, failure by us or our strategic partners to comply with the IVDD could have a material adverse effect on our business.


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Environmental

We are subject to federal, state and local laws and regulations relating to the protection of human health and the environment. In the course of our business, we are involved in the handling, storage and disposal of certain chemicals and biohazards. The laws and regulations applicable to our operations include provisions that regulate the discharge of materials into the environment. Some of these environmental laws and regulations impose “strict liability,” rendering a party liable without regard to negligence or fault on the part of such party. Such environmental laws and regulations may expose us to liability for environmental contamination, including remediation costs, natural resource damages and other damages as a result of the conduct of, or conditions caused by, us or others, or for acts that were in compliance with all applicable laws at the time such acts were performed. In addition, where contamination may be present, it is not uncommon for neighboring landowners and other third parties to file claims for personal injury, property damage and recovery of response costs. Although it is our policy to use generally accepted operating and disposal practices in accordance with applicable environmental laws and regulations, hazardous substances or wastes may have been disposed or released on, under or from properties owned, leased or operated by us or on, under or from other locations where such substances or wastes have been taken for disposal. These properties may be subject to investigation, remediation and monitoring requirements under federal, state and local environmental laws and regulations. We believe that our operations are in substantial compliance with applicable environmental laws and regulations. However, failure to comply with these environmental laws and regulations may result in the imposition of administrative, civil and criminal penalties or other liabilities. We do not believe that we have been required to expend material amounts in connection with our efforts to comply with environmental requirements or that compliance with such requirements will have a material adverse effect upon our capital expenditures, results of operations or competitive position. Because the requirements imposed by such laws and regulations may frequently change and new environmental laws and regulations may be adopted, we are unable to predict the cost of compliance with such requirements in the future, or the effect of such laws on our capital expenditures, results of operations or competitive position. Moreover, the modification or interpretation of existing environmental laws or regulations, the more vigorous enforcement of existing environmental laws or regulations, or the adoption of new environmental laws or regulations may also negatively impact our strategic partners, which in turn could have a material adverse effect on us and other similarly situated component companies.

Sunshine Act

In 2010, Congress enacted a statute called the Transparency Reports and Reporting of Physician Ownership or Investment Interests (commonly known as the Sunshine Act), as part of the Patient Protection and Affordable Care Act, as amended by the Health Care and Education Reconciliation Act of 2010 (collectively, the Health Reform Law). The Sunshine Act aims to promote transparency and requires manufacturers of most drugs, devices, biologicals and medical supplies covered by Medicare, Medicaid or the Children's Health Insurance Program (CHIP) to report annually to the Centers for Medicare and Medicaid Services (CMS) any payments or other transfers of value made to physicians and teaching hospitals, with limited exceptions. Manufacturers must also disclose to CMS any physician ownership or investment interests. In 2014, the annual reporting requirement applicable to manufacturers covered by the Sunshine Act, including Luminex entities operating or selling in the US, took effect, and CMS released datasets for payments made in 2013 to the public through the CMS website. Annual reports addressing transfers of value and relationships for the preceding calendar year will be published on the CMS website each year. We have provided internal training regarding the Sunshine Act requirements to relevant personnel and have implemented procedures to track and report any transfers of value covered by the Sunshine Act. Failure to comply with the reporting requirement may result in substantial monetary penalties.

Other

Based on the Health Reform Law, the IRS implemented a Medical Device Excise Tax of 2.3% of the sale price on non-exempt medical devices. This tax on manufacturers has not had, nor do we expect it to have, a material impact on our operations.

Employees

As of February 23, 2015 and December 31, 2014 , respectively, we had a total of 741 and 745 employees and contract employees, as compared with 731 as of December 31, 2013 .  The year over year increase is primarily the result of the addition of sales and marketing employees focused on direct sales to our end customers, as well as personnel added related to development, production, regulatory clearance and quality control for our new sample to answer instrument (ARIES) and our bead products and assays.  None of our employees are represented by a collective bargaining agreement, and we have not experienced any work stoppage. We believe that relations with our employees are good.


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Seasonality
 
Worldwide sales, including U.S. sales, do not reflect any significant degree of seasonality; however, sales of our Respiratory Viral products have demonstrated seasonal fluctuations consistent with the onset and decline of influenza-like illnesses.

Segment Reporting

During the fourth quarter of 2014, in conjunction with the appointment of our new CEO, Luminex evaluated its historical reporting segments: the TSP segment and the ARP segment. As a result of this evaluation and based upon how our new Chief Executive Officer as Chief Operating Decision Maker and our management team collectively is managing our business, we determined that the two former segments have become so integrated and interrelated that they no longer provide an accurate representation of our current business when reported separately. Additionally, we have taken actions to consolidate sales and service functions. Effective with the fourth quarter of 2014, we no longer have two operating segments and, accordingly, will present our business as one operating segment and one reporting unit. Accordingly, prior periods' information has been restated to conform to the current periods' presentation.

Financial information relating to our reportable segment for the years ended December 31, 2014, 2013 and 2012 can be found in Item 7 “Management’s Discussion and Analysis of Financial Information and Results of Operations” and Item 8 “Financial Statements and Supplementary Data”.

Executive Officers of the Registrant as of February 23, 2015

Name
 
Age
 
Position
 
 
 
 
 
Nachum Shamir
 
61
 
President and Chief Executive Officer
Harriss T. Currie
 
53
 
Chief Financial Officer, Senior Vice President, Finance and Treasurer
Jeremy Bridge-Cook, Ph.D
 
46
 
Senior Vice President, Research and Development
Russell W. Bradley
 
51
 
Senior Vice President, Corporate Development and Chief Marketing and Sales Officer
David S. Reiter
 
48
 
Senior Vice President, General Counsel and Corporate Secretary
Nancy M. Fairchild
 
61
 
Senior Vice President, Human Resources

Nachum Shamir . Mr. Shamir joined the Company on October 14, 2014 as President and Chief Executive Officer and was elected to our Board. From 2006 to 2014, Mr. Shamir was the President, Chief Executive Officer and Director of Given Imaging Ltd. (Given), a developer, manufacturer and marketer of diagnostic products for the visualization and detection of disorders of the gastrointestinal tract. Prior to joining Given, Mr. Shamir served as Corporate Vice President of Eastman Kodak Company, a technology company focused on imaging solutions and services for businesses from 2004 to 2006, and as the President of Eastman Kodak's Transaction and Industrial Solutions Group from 2005 to 2006, which includes several business units, including Kodak Versamark, Inc. (whose operations were previously those of Scitex Digital Printing Inc.) of which Mr. Shamir had served as President and Chief Executive Officer. From June 2003 to January 2004, Mr. Shamir served as the President and Chief Executive Officer of Scitex Corporation, a multinational public company which specialized in producing products, systems and equipment for the graphic design, printing and publishing markets through its various operating units. From January 2001 to January 2004, Mr. Shamir served as the President and Chief Executive Officer of Scitex Digital Printing, a subsidiary of Scitex Corporation Ltd., having previously served as its Chief Operating Officer since July 2000. Prior thereto, Mr. Shamir was Managing Director and General Manager of Scitex Digital Printing (Asia Pacific) Pte Ltd., a Singapore-based company, from its incorporation in 1994. From 1993 until 1994 Mr. Shamir was with the Hong Kong based Scitex Asia Pacific (H.K.) Ltd. Before joining Scitex, Mr. Shamir held senior management positions at various international companies mainly in the Asia Pacific regions. Mr. Shamir currently serves on the board of directors of Invendo Medical GmbH, a manufacturer and distributor of a single use and computer-assisted colonoscopy system. Mr. Shamir holds a Bachelor of Science from the Hebrew University of Jerusalem and a Masters of Public Administration from Harvard University.

Harriss T. Currie. Mr. Currie served as Vice President, Finance, Treasurer and Chief Financial Officer since October of 2002 and was appointed Senior Vice President, Finance (as well as Chief Financial Officer and Treasurer) in March 2013. Since joining Luminex in November of 1998, Mr. Currie previously served in the capacities of Controller and Treasurer. Prior to joining us, he was employed as the chief financial officer, secretary and treasurer of SpectraCell Laboratories, a specialized clinical testing laboratory company, from 1993 to 1998 where he also served as vice president of finance for two subsidiary companies. Mr. Currie earned his B.B.A. from Southwestern University and his M.B.A. in Finance and Marketing from The University of Texas at Austin. Prior to returning to graduate school for his M.B.A., Mr. Currie was a certified public accountant with Deloitte & Touche LLP.

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Jeremy Bridge-Cook, Ph.D.   Dr. Bridge-Cook has served as Senior Vice President, Research and Development since June 2009.  Dr. Bridge-Cook joined Luminex in March 2007 as Vice President of Luminex Molecular Diagnostics.  Previously, Dr. Bridge-Cook served as senior vice president, corporate development of Tm Bioscience Corporation, which was acquired by Luminex in 2007.  Dr. Bridge-Cook joined Tm Bioscience Corporation in July 2000 as director of business development and served in various capacities thereafter, including vice president of business development, vice president of marketing and business development, and finally senior vice president, corporate development.  Prior to joining Tm Biosciences Corporation, Dr. Bridge-Cook worked for three years as an investment analyst at MDS Capital Corp. and University Medical Discoveries Inc. Dr. Bridge-Cook has a Ph.D. in Immunology from the University of Toronto and a B.Sc. in Biology from McMaster University.

Russell W. Bradley .  Mr. Bradley joined Luminex in May 2005 as Vice President of Business Development and Strategic Planning and was appointed as Senior Vice President, Corporate Development and Global Marketing in August 2013 and then promoted to Senior Vice President, Corporate Development and Chief Marketing and Sales Officer in October 2014.  Previously, Mr. Bradley spent 17 years at Beckman Coulter, Inc., a manufacturer of biomedical testing systems and products, where he served in various roles of increasing responsibility including commercial leadership of Beckman Coulter's flow cytometry business and most recently as the director of the Beckman Coulter CARES initiative, leading the company’s clinical HIV monitoring business in developing regions around the globe.  During his tenure at Beckman Coulter, Mr. Bradley was involved in the evaluation, market assessment and commercial launch of multiple life science technologies and applications.  Mr. Bradley holds a B.Sc. in Immunology and Biochemistry from Monash University, Melbourne, Australia.

David S. Reiter.   Mr. Reiter joined Luminex as Vice President, General Counsel and Corporate Secretary in October 2003 and was appointed Senior Vice President, General Counsel and Corporate Secretary in March 2013.  Prior to becoming General Counsel, Mr. Reiter was in private practice with the firm of Phillips & Reiter, PLLC from 2002 to 2004, which provides outsourced general counsel services for early to mid-stage companies.  Mr. Reiter is a graduate of the University of Southern California (Juris Doctorate/Master of International Relations), University of Sheffield, UK (M.B.A.) and the University of Notre Dame (B.A. in Government).  Mr. Reiter is a member of the Texas Bar and the American Bar Association. On December 19, 2014, Mr. Reiter informed the Company of his intention to resign as the Company's Senior Vice President, General Counsel and Corporate Secretary to pursue other interests. We anticipate Mr. Reiter's resignation will be effective April 1, 2015.

Nancy M. Fairchild. Ms. Fairchild joined Luminex Corporation as Senior Director, Human Resources in March 2010.  She was promoted to a Vice President, Human Resources in August 2012 and then promoted to Senior Vice President, Human Resources in January 2015.  Prior to Luminex, Ms. Fairchild served as Chief Administrative Officer and Vice President of Human Resources and Organizational Development for the Electric Reliability Council of Texas which provides the energy grid services for Texas, from 2006 to 2010. In this role she managed Strategic Planning, Project Management, Facilities and Human Resources.  Earlier in her career, she served as Vice President Human Resources for Esoterix, Inc., an international healthcare company specializing in laboratory services, from 2001 to 2006, the Sr. Vice President of Human Resources for Southern Union Company, a large natural gas conglomerate, from 1989 to 2001, and President of EnergyWorX, a training subsidiary, from 1996 to 2000. Ms. Fairchild is currently a member of the Board of Directors and Chair of the Audit Committee for Workforce Solutions, a local workforce development board in Texas, representing the biotech sector. She graduated with highest honors from Texas State University with a B.S. degree in Math Education and a Master’s degree in Counseling. 




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ITEM 1A. RISK FACTORS

If we do not introduce new products in a timely manner, we may lose market share and be unable to achieve revenue growth targets.

We sell many of our products in industries characterized by rapid technological change, frequent new product and service introductions, and evolving customer needs and industry standards. Many of the businesses competing with us in these industries have significant financial and other resources to invest in new technologies, substantial intellectual property portfolios, substantial experience in new product development, regulatory expertise, manufacturing capabilities, and established distribution channels to deliver products to customers. Our products could become technologically obsolete over time, or we may invest in technologies that do not lead to revenue growth or continue to sell products for which the demand from our customers is declining, in which case we may lose market share or not achieve our revenue growth targets. The success of our new product offerings will depend upon several factors, including our ability to:
accurately anticipate customer needs;
innovate and develop new technologies and applications;
obtain required regulatory clearances;
successfully commercialize new technologies in a timely manner;
price our products competitively, and manufacture and deliver our products in sufficient volumes and on time; and
differentiate our offerings from our competitors' offerings.

Many of our products are used by our customers to develop, test and manufacture their products. We must anticipate industry trends and consistently develop new products to meet our customers' expectations. In developing new products, we may be required to make significant investments before we can determine the commercial viability of the new product. If we fail to accurately foresee our customers' needs and future activities, we may invest heavily in research and development of products that do not lead to significant revenue. We may also suffer a loss in market share and potential revenue if we are unable to commercialize our technology in a timely and efficient manner.

If our current technology and products and our products under development do not become widely used in the life sciences and clinical diagnostics industries, we may not be able to maintain or increase profitability.

Life sciences companies have historically conducted biological tests using a variety of technologies, including bead-based analysis. The commercial success of our technology depends upon its widespread adoption as a method to perform bioassays. In order to be successful, we must convince potential partners and customers to utilize our system instead of competing technologies. Market acceptance depends on many factors, including our ability to:
timely and successfully launch our products under development;

manage trends relating to, or the introduction or existence of, competing products or technologies that may be more effective, cheaper or easier to use than our products and technologies;

manage our competition, including the presence of competing products sold by companies with longer operating histories, more recognizable names and more established distribution networks;

convince prospective strategic partners and customers that our technology is an attractive alternative to other technologies for pharmaceutical, research, clinical, biomedical and genetic testing and analysis;

encourage these partners to develop and market products using our technology;

manufacture products in sufficient quantities with acceptable quality and at an acceptable cost;

obtain and maintain sufficient pricing and royalties from partners on such Luminex products; and

place and service sufficient quantities of our products, including the ability to provide the level of service required in the mainstream clinical diagnostics market segment.


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Because of these and other factors, our products may not gain or sustain sufficient market acceptance to maintain or increase profitability.  Additionally, we may have to write off excess or obsolete inventory if sales of our products are not consistent with our expectations or if the demand for our products changes.

The life sciences industry is highly competitive and subject to rapid technological change, and we may not have the right technologies and resources necessary to compete successfully.

We compete with companies in the United States and abroad that are engaged in the development and production of similar products. We will continue to face intense competition from existing competitors and other companies seeking to develop new technologies. Many of our competitors have access to greater financial, technical, scientific, research, marketing, sales, distribution, service and other resources than we do and may have longer operating histories or more recognizable names. These companies may develop technologies that are superior alternatives to our technologies or may be more effective at commercializing their technologies in products.

The life sciences industry is characterized by rapid and continuous technological innovation. We may need to develop new technologies for our products to remain competitive. One or more of our current or future competitors could render our present or future products or those of our partners obsolete or uneconomical by technological advances, including the introduction or existence of, competing products or technologies that may be more effective, cheaper or easier to use than our products and technologies. In addition, the introduction or announcement of new products by us or others could result in a delay of or decrease in sales of existing products as we await regulatory approvals, while customers evaluate these new products, or if customers choose to purchase the new products instead of legacy products. We may also encounter other problems in the process of delivering new products to the marketplace such as problems related to design, development, supply chain or manufacturing of such products, and as a result we may be unsuccessful in selling such products. Our future success depends on our ability to compete effectively against current technologies, as well as to respond effectively to technological advances by developing and marketing products that are competitive in the continually changing technological landscape.

Several companies provide systems and reagents for DNA amplification or detection. Life Technologies Corporation (a brand of Thermo Fisher Scientific) and F. Hoffman-La Roche Ltd. (Roche) sell systems integrating DNA amplification and detection (sequence detection systems) to the commercial market. Roche, Abbott Laboratories, Becton, Dickinson and Company, Qiagen N.V., Hologic, Inc., Meridian Bioscience, Inc., bioMérieux S.A., Illumina, Inc. and Quidel Corporation sell sequence detection systems, some with separate robotic batch DNA purification systems and sell reagents to the clinical market. Other companies offer molecular tests. Additionally, we anticipate that in the future, additional competitors will emerge that offer a broad range of competing products.

Currently, a limited number of direct customers and strategic partners account for a significant portion of our revenue and the loss of any one of these or their inability to perform to expectations could have a material adverse effect on our business, financial condition and results of operations. Our success depends significantly on the establishment and maintenance of successful relationships with our direct customers and strategic partners.

LabCorp, Thermo Fisher Scientific Inc., and Bio-Rad Laboratories, Inc., accounted for 45% of total revenue (21%, 17% and 7%, respectively) in the twelve months ended December 31, 2014 . For comparative purposes, these same three companies accounted for 44% of total revenue (18%, 17% and 9%, respectively) in the twelve months ended December 31, 2013 and 51% of total revenue (19%, 24% and 8%, respectively) in the twelve months ended December 31, 2012 .   No other customer accounted for more than 7% of total revenue during the twelve months ended December 31, 2014 .  In total, for the year ended December 31, 2014 , our top four customers accounted for 51% of our total revenue.  In total, for the year ended December 31, 2013 , our top four customers accounted for 50% of our total revenue. The loss of any of our significant direct customers or strategic partners could have a material adverse effect on our growth and future results of operations.  


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Delays in implementation, delays in obtaining regulatory approval, changes in strategy or the financial difficulty of our strategic partners for any reason could have a material adverse effect on our business, financial condition and results of operations.

Our ability to enter into agreements with additional strategic partners depends in part on convincing them that our technology can help achieve and accelerate their goals or efforts. We will expend substantial funds and management efforts with no assurance that any additional strategic relationships will result. We cannot guarantee that we will be able to negotiate additional strategic agreements in the future on acceptable terms, if at all, or that current or future strategic partners will not pursue or develop alternative technologies either on their own or in collaboration with others. Some of the companies we are targeting as strategic partners offer products competitive with our xMAP technology, which may hinder or prevent strategic relationships. Delays in implementation of new products by our strategic partners or their ability to obtain regulatory approval for their products could negatively affect our business. Termination of strategic relationships, the failure to enter into a sufficient number of additional strategic relationships on favorable terms, or disputes with our partners could reduce sales of our products, lower margins on our products and limit the creation of market demand for and acceptance of our products.

In most of our strategic partnerships we have granted non-exclusive rights with respect to commercialization of our products and technology.  The lack of exclusivity could deter existing strategic partners from commercializing xMAP technology and may deter new strategic partners from entering into agreements with us.

A significant portion of our future revenues will come from sales of our systems and the development and sale of bioassay kits utilizing our technology by our strategic partners and from use of our technology by our strategic partners in performing services offered to third parties. We believe that our strategic partners will have economic incentives to develop and market these products, but we cannot accurately predict future sales and royalty revenues because many of our existing strategic partner agreements do not include minimum purchase requirements or minimum royalty commitments. Some of our existing strategic partner agreements contain minimum purchase requirements for certain years, but unless renegotiated, those minimum purchase requirements could expire. In addition, we have no control with respect to our strategic partners’ sales personnel and how they prioritize products based on xMAP technology nor can we control the timing of the development or release of products by our strategic partners. The amount of these revenues depends on a variety of factors that are outside our control, including the amount and timing of resources that current and future strategic partners devote to develop and market products incorporating our technology. Furthermore, the development and marketing of certain bioassay kits will require our strategic partners to obtain governmental approvals, which could delay or prevent their commercialization efforts. If our current or future strategic partners do not successfully develop and market products based on our technology and obtain necessary government approvals, our revenues from product sales and royalties will be significantly reduced.

The property rights we rely upon to protect the technology underlying our products may not be adequate to maintain market exclusivity. Inadequate intellectual property protection could enable third parties to exploit our technology or use very similar technology and could reduce our ability to distinguish our products in the market.

Our success depends, in part, on our ability to obtain, protect and enforce patents on our technology and products and to protect our trade secrets, including the intellectual property of entities we may acquire. Any patents we own may not afford full protection for our technology and products. Others may challenge our patents and, as a result, our patents could be narrowed or invalidated. In addition, our current and future patent applications may not result in the issuance of patents in the United States or foreign countries. Competitors may develop products that are not covered by our patents. Furthermore, there is a substantial backlog of patent applications at the U.S. Patent and Trademark Office and certain patent offices in foreign jurisdictions, and the approval or rejection of patent applications may take several years.

We currently own 315 issued patents worldwide, including 124 issued patents in the United States. Other countries in which we have issued patents directed to various aspects and applications of our products and technology include France, Germany, United Kingdom, Australia, Japan, Netherlands, Canada, Hong Kong and China, amongst others. In addition, our patent portfolio includes 162 pending patent applications in the United States and other foreign jurisdictions.  We also have patents covering key aspects of MultiCode and xTAG technology utilized in our assay products as well as ARIES, our soon to be launched automated real-time PCR system, and NxTAG.


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We require our employees, consultants, strategic partners and other third parties to execute confidentiality agreements. Our employees and third-party consultants also sign agreements requiring that they assign to us their interests in inventions and original expressions and any corresponding patents and copyrights arising from their work for us. In addition, we have implemented a patent process to file patent applications on our key technology. However, we cannot guarantee that these agreements or this patent process will provide us with adequate protection against improper use of our intellectual property or disclosure of confidential information. In addition, in some situations, these agreements may conflict with, or be subject to, the rights of third parties with whom our employees, consultants or advisers have prior employment or consulting relationships. Further, others may independently develop substantially equivalent proprietary technology, techniques and products or counterfeit versions of our products or otherwise gain access to our trade secrets. Our failure to protect our proprietary information and techniques may inhibit or limit our ability to exclude certain competitors from the market.

In order to protect or enforce our patent rights, we may have to initiate legal proceedings against third parties, such as infringement suits or interference proceedings. These legal proceedings could be expensive, take significant time and/or divert management’s attention from other business concerns. These proceedings may cause us to lose the benefit of some of our intellectual property rights, the loss of which may inhibit or preclude our ability to exclude certain competitors from the market. These proceedings also may provoke these third parties to assert claims against us. The patent position of companies like ours generally is highly uncertain, involves complex legal and factual questions and has recently been the subject of much litigation. No consistent policy has emerged from the U.S. Patent and Trademark Office or the courts regarding the breadth of claims allowed or the degree of protection afforded under patents like ours.

Our success depends partly on our ability to operate without infringing on or misappropriating the proprietary rights of others.

We have been (and from time to time we may be) notified that third parties consider their patents or other intellectual property relevant to our products. We may be sued for infringing the intellectual property rights of others, including claims with respect to intellectual property of entities we may acquire.  In addition, we may find it necessary, if threatened, to initiate a lawsuit seeking a declaration from a court that we do not infringe on the proprietary rights of others or that their rights are invalid or unenforceable. Intellectual property litigation is costly, and, even if we prevail, the cost of such litigation could affect our profitability. Furthermore, litigation is time-consuming and could divert management’s attention and resources away from our business. If we do not prevail in any litigation, we may have to pay damages and could be required to stop the infringing activity or obtain a license. Any required license may not be available to us on acceptable terms, if at all. Moreover, some licenses may be nonexclusive, and therefore, our competitors may have access to the same technology licensed to us. If we fail to obtain a required license or are unable to design around a patent, we may be unable to sell some of our products, which could have a material adverse effect on our business, financial condition and results of operations.

We require collaboration with other organizations in obtaining relevant biomarkers, access to oligonucleotides and enzymes that are patented or controlled by others. If we cannot continue to obtain access to these areas or identify freedom to operate opportunities, our business, financial condition and results of operations could be negatively affected.

Security breaches and other disruptions could compromise our information, expose us to liability and harm our reputation and business.

In the ordinary course of our business we collect and store sensitive data, including intellectual property, personal information, our proprietary business information and that of our customers, suppliers and business partners, and personally identifiable information of our customers and employees in our data centers and on our networks. The secure maintenance and transmission of this information is critical to our operations and business strategy. We rely on commercially available systems, software, tools and domestically available monitoring to provide security for processing, transmitting and storing this sensitive data.

Computer hackers may attempt to penetrate our computer systems or our third party IT service providers' systems and, if successful, misappropriate personal or confidential business information. In addition, an associate, contractor, or other third-party with whom we do business may attempt to circumvent our security measures in order to obtain such information, and may purposefully or inadvertently cause a breach involving such information. While we will continue to implement additional protective measures to reduce the risk of and detect cyber incidents, cyber-attacks are becoming more sophisticated and frequent, and the techniques used in such attacks change rapidly. Despite our cybersecurity measures (including employee and third-party training, monitoring of networks and systems, and maintenance of backup and protective systems) which are continuously reviewed and upgraded, the Company’s information technology networks and infrastructure may still be vulnerable to damage, disruptions or shutdowns due to attack by hackers or breaches, employee error or malfeasance, power outages, computer viruses, telecommunication or utility failures, systems failures, natural disasters or other catastrophic events. Any such compromise of our, or our third party IT service providers' data security and access, public disclosure, or loss of personal or confidential business information could result in legal claims or proceedings, liability under laws that protect the privacy of personal information, and

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regulatory penalties, disrupt our operations, damage our reputation and customers’ willingness to transact business with us, and subject us to additional costs and liabilities any of which could adversely affect our business.

Our success depends on our ability to service and support our products directly or in collaboration with our strategic partners.

To the extent that we or our strategic partners fail to maintain a high quality level of service and support for xMAP technology products, there is a risk that the perceived quality of our xMAP technology products will be diminished in the marketplace. Likewise, we may fail to provide the level, quantity or quality of service expected by the marketplace. This could result in slower adoption rates and lower than anticipated utilization of xMAP products which could have a material adverse effect on our business, financial condition and results of operations.

We expect our operating results to continue to fluctuate from quarter to quarter.

The sale of our instrumentation and assay products typically involves a significant technical evaluation and commitment of capital by us, our partners and the end user. Accordingly, the sales cycle associated with our products typically is lengthy and subject to a number of significant risks, much of which is beyond our control, including partners’ budgetary constraints, inventory management practices, regulatory approval and internal acceptance reviews. As a result of this lengthy and unpredictable sales cycle, our operating results have historically fluctuated significantly from quarter to quarter. We expect this trend to continue for the foreseeable future.

The vast majority of our system sales are made to our strategic partners. Our partners typically purchase instruments in three phases during their commercialization cycle: first, instruments necessary to support internal assay development; second, instruments for sales force demonstrations; and finally, instruments for resale to their customers. As a result, most of our system placements are highly dependent on the continued commercial success of our strategic partners and can fluctuate from quarter to quarter as our strategic partners move from phase to phase. We expect this trend to continue for the foreseeable future.

Our assay products are sometimes sold to large customers. The ordering and consumption patterns of these customers can fluctuate, affecting the timing of shipments and revenue recognition. In addition, certain products assist in the diagnosis of illnesses that are seasonal, and customer orders can fluctuate for this reason.

Because of the effect of bulk purchases, defined as the purchase of $100,000 or more of consumables in a quarter, and the introduction of seasonal components to our assay menus, we experience fluctuations in the percentage of our quarterly revenues derived from our highest margin items: consumables, royalties and assays. Our gross margin percentage is highly dependent upon the mix of revenue components each quarter. These fluctuations contribute to the variability and lack of predictability of both gross margin percentage and total gross profit from quarter to quarter. We expect this trend to continue for the foreseeable future.

Due to the early stage of the market for molecular tests, projected growth scenarios for our assays are highly volatile and are based on a number of underlying assumptions that may or may not prove to be valid, including our ability to be successful with our direct assay sales strategy.

We may be unsuccessful in implementing our acquisition strategy. We may face difficulties integrating acquired entities with our existing businesses. Our business may be harmed by prior or future acquisitions.

Acquisitions of assets or entities designed to accelerate the implementation of our strategic plan are an important element of our long-term strategy. We may be unable to identify and complete appropriate future acquisitions in a timely manner, or at all, and no assurance can be provided that the market price of potential business acquisitions will be acceptable. In addition, many of our competitors have greater financial resources than we have and may be willing to pay more for these businesses or selected assets. In the future, should we identify suitable acquisition targets, we may be unable to complete acquisitions or obtain the financing, if necessary, for these acquisitions on terms favorable to us. Potential acquisitions pose a number of risks, including, among others, that:

we may not be able to accurately estimate the financial effect of acquisitions on our business;

future acquisitions may require us to incur debt or other obligations, issue additional securities, incur large and immediate write-offs, issue capital stock potentially dilutive to our stockholders or spend significant cash, or may negatively affect our operating results and financial condition;

if we spend significant funds or incur additional debt or other obligations, our ability to obtain financing for working capital or other purposes could decline, and we may be more vulnerable to economic downturns and competitive pressures;

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technological advancement or worse than expected performance of acquired businesses may result in the impairment of intangible assets;

we may be unable to realize the anticipated benefits and synergies from acquisitions as a result of inherent risks and uncertainties, including difficulties integrating acquired businesses or retaining their key personnel, partners, customers or other key relationships, entering market segments in which we have no or limited experience, and risks that acquired entities may not operate profitably or that acquisitions may not result in improved operating performance;

we may fail to successfully obtain appropriate regulatory approval or clearance for products under development of our acquired businesses;

we may fail to successfully manage relationships with customers, distributors and suppliers;

our customers may not accept products of our acquired businesses;

we may fail to effectively coordinate sales and marketing efforts of our acquired businesses;

we may fail to combine product offerings and product lines of our acquired businesses quickly and effectively;

we may fail to effectively enhance acquired technology and products to develop new products relating to the acquired businesses;

an acquisition may involve unexpected costs or liabilities, including as a result of pending and future shareholder lawsuits relating to acquisitions or exercise by shareholders of their statutory appraisal rights, or the effects of purchase accounting may be different from our expectations;

an acquisition may involve significant contingent payments that may adversely affect our future liquidity or capital resources;

acquisitions and subsequent integration of these companies may disrupt our business and distract our management from other responsibilities; and

the costs of unsuccessful acquisition efforts may adversely affect our financial performance.

Other risks of integration of acquired businesses include:

disparate information technology, internal control, financial reporting and record-keeping systems;

differences in accounting policies, including those requiring judgment or complex estimation processes;

new partners or customers who may operate on terms and programs different than ours;

additional employees not familiar with our operations;

unanticipated additional transaction and integration-related costs;

our current and prospective customers and suppliers may experience uncertainty associated with an acquisition, including with respect to current or future business relationships with us and may attempt to negotiate changes in existing business;

facilities or operations of acquired businesses in remote locations or potentially foreign jurisdictions and the inherent risks of operating in unfamiliar legal and regulatory environments; and

new products, including the risk that any underlying intellectual property associated with such products may not have been adequately protected or that such products may infringe on the proprietary rights of others.


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If our direct selling efforts for our products are less successful than anticipated, our business expansion plans could suffer and our ability to generate revenues could be diminished. In addition, our limited history in selling our molecular diagnostics products on a direct basis makes forecasting difficult.

We have a relatively small sales force compared to some of our competitors. If our direct sales force is not successful, or new additions to our sales team fail to gain traction among our customers, we may not be able to increase market awareness and sales of our products, or maintain historical sales levels. If we fail to establish our systems in the marketplace, it could have a negative effect on our ability to sell subsequent systems and hinder the planned expansion of our business.

We transitioned to selling our molecular diagnostics products on a direct basis in 2013, so we only have a two year direct sales history. As a result, we have limited historical experience forecasting the direct sales of our molecular diagnostics products. Our ability to produce product quantities that meet customer demand is dependent upon our ability to forecast accurately, plan production accordingly and scale our manufacturing efforts.

Unfavorable economic conditions and the uncertain economic outlook may adversely impact our business, results of operations, financial condition or liquidity.

Global economic conditions could adversely affect our results of operations.  The credit markets and the financial services industry continue to experience volatility, both domestically and internationally.  These conditions not only limit our access to capital but also make it extremely difficult for our customers, our vendors and us to accurately forecast and plan future business activities, and they could cause U.S. and foreign businesses and consumers to slow spending on our products and services, which would delay and lengthen sales cycles. Some of our customers rely on government research grants to fund technology purchases.  If negative trends in the economy affect the government’s allocation of funds to research, there may be less grant funding available for certain of our customers to purchase technologies like those Luminex sells.  Certain of our partners and their and our customers may face challenges gaining timely access to sufficient credit or may otherwise be faced with budget constraints, which could result in decreased purchases of, or development of products based on, our products or in an impairment of their ability to make timely payments to us.  If our partners and our customers do not make timely payments to us, we may be required to assume greater credit risk relating to those customers, increase our allowance for doubtful accounts and our days sales outstanding would be negatively impacted.   Although we maintain allowances for doubtful accounts for estimated losses resulting from the inability of our customers to make required payments and such losses have historically been within our expectations and the provisions established, we may not continue to experience the same loss rates that we have in the past given the current condition of the worldwide economy.  Additionally, these economic conditions and market turbulence may also impact our suppliers causing them to be unable to supply in a timely manner sufficient quantities of customized components, thereby impairing our ability to manufacture on schedule and at commercially reasonable costs.

If the governmental laws and regulations change in ways that we do not anticipate and if we fail to comply with laws and regulations that affect our business, we could be subject to enforcement actions, injunctions and civil and criminal penalties or otherwise be subject to increased costs that could delay or prevent marketing of our products.

The production, testing, labeling, marketing and distribution of our products for some purposes and products based on our technology are subject to governmental regulation by the FDA and by similar agencies in other countries. Some of our products and products based on our technology for in vitro diagnostic purposes are subject to clearance by the FDA prior to marketing for commercial use. To date, eight strategic partners have obtained such clearances. Others are anticipated. The process of obtaining necessary FDA clearances can be time-consuming, expensive and uncertain. Further, clearance may place substantial restrictions on the indications for which the product may be marketed or to whom it may be marketed. In addition, because some of our products employ laser technology, we are also required to comply with FDA requirements relating to radiation performance safety standards.
 
Periodically the FDA issues guidance documents that represent the FDA’s current thinking on a topic. These issues are initially issued in draft form prior to final rule generally with enforcement discretion for some grace period of time. Changes made through this process may impact the release status of products offered and our ability to market those products affected by the change.  For example, the FDA released on September 14, 2007 the final document “Guidance for Industry and FDA Staff Commercially Distributed Analyte Specific Reagents (ASRs): Frequently Asked Questions.” This guidance may limit or delay distribution of assays on our platform, including assays that we developed internally and distributed, to the extent additional regulatory clearance is required prior to distribution.


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Cleared medical device products are subject to continuing FDA requirements relating to, among others, manufacturing quality control and quality assurance, maintenance of records and documentation, registration and listing, import/export, adverse event and other reporting, distribution, labeling and promotion and advertising of medical devices. Our inability or the inability of our strategic partners to obtain required regulatory approval or clearance on a timely or acceptable basis could harm our business. In addition, failure to comply with applicable regulatory requirements could subject us or our strategic partners to regulatory enforcement action, including warning letters, product seizures, recalls, withdrawal of clearances, restrictions on or injunctions against marketing our products or products based on our technology, and civil and criminal penalties.

Medical device laws and regulations are in effect within the United States and also in many countries outside the United States. These range from comprehensive device clearance requirements for some or all of our medical device products to requests for product data or certifications regarding the hazardous material content of our products. As a device manufacturer, beginning in March 2014 we are required to annually report to CMS any payments or transfers of value we have made to physicians and teaching hospitals and any physician ownership or investment interest in the company. As part of the European Council Directive 2002/96 of February 13, 2003, we are expected to comply with certain requirements regarding the collection, recycling and labeling of our products containing electronic devices in each of the European Union, or EU, member states where our regulated products are distributed. While we are taking steps to comply with the requirements of WEEE, we cannot be certain that we will comply with the national stage implementation of WEEE in all member states. Our products are currently exempt from the European Council Directive 2002/95 of January 27, 2003, Restriction of the Use of Certain Hazardous Substances in Electrical and Electronic Equipment (RoHS), which required the removal of certain specified hazardous substances from certain products beginning July 1, 2006 in each of the member states. However, the EU has indicated that it may, and it is generally expected it will, include medical devices, including some of our products, under the jurisdiction of RoHS. If this exemption is revoked, it could result in increased costs to us and we cannot guarantee we will ultimately be able to comply with RoHS or related requirements in other jurisdictions. In addition, the State of California adopted the Electronic Waste Recycling Act, effective January 1, 2007, which requires the California Department of Toxic Substances Control to adopt regulations to prohibit the sale of electronic devices in California if they are also prohibited from sale in the EU under the RoHS directive because they contain certain heavy metals. The number and scope of these requirements are increasing and we will likely become subject to further similar laws in other jurisdictions. Failure to comply with applicable federal, state and foreign medical device laws and regulations may harm our business, financial condition and results of operations. We are also subject to a variety of other laws and regulations relating to, among other things, environmental protection and workplace health and safety.

Our strategic partners and customers expect our organization to operate on an established quality management system compliant with FDA Quality System Regulations and industry standards, the In Vitro Diagnostic Directive 98/79/EC of 27 October 1998 (Directive) as implemented nationally in the EU member states and industry standards, such as ISO 9000. We became ISO 9001:2000 certified in March 2002 and self-declared our Luminex 100, Luminex 200, FLEXMAP 3D and MAGPIX instruments to the Directive.  Our devices are in conformity with Article 1, Article 9, Annex I (Essential Requirements), and Annex III and the additional provisions of the Directive as of December 7, 2003. Subsequent audits are carried out annually to ensure we maintain our system in substantial compliance with ISO and other applicable regulations and industry standards. We became ISO 13485:2003 and CMDCAS certified in July 2005. Failure to maintain compliance with FDA, CMDCAS and EU regulations and other medical device laws, or to obtain applicable registrations where required, could reduce our competitive advantage in the markets in which we compete and also decrease satisfaction and confidence levels with our partners.

Our success depends on our ability to attract and retain our management and staff.

We depend on the principal members of our management and scientific staff, including our chief executive officer, Homi Shamir, and our operations, marketing, research and development, technical support, technical service and sales staff. The loss of services of key members of management could delay or reduce our product development, marketing and sales and technical support efforts. In addition, recruiting and retaining qualified scientific and other personnel to perform research and development, technical support, technical service and marketing and sales work will be critical to our success. There is a shortage in our industry of qualified management and scientific personnel, and competition for these individuals is intense. There can be no assurance that we will be able to attract additional and retain existing personnel necessary to achieve our business objectives.

Our reliance on strategic partnerships makes forecasting difficult.

As a result of our reliance on our strategic relationships, it can be difficult to accurately forecast future operating results. Estimating the timing and amount of sales of our products is particularly difficult for the following reasons (among others):

We do not control the timing or extent of product development, marketing or sale of our products by our strategic partners.

We do not control the incentives provided by our strategic partners and distributors to their sales personnel.

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We utilize a limited number of geographically focused distributors for a portion of our sales, including several of our key assay products and the loss of or nonperformance by these distributors could harm our revenues in the territories serviced by these distributors.

A significant number of our strategic partners intend to produce clinical diagnostic applications that may need to be approved by the FDA or other regulatory bodies in jurisdictions outside of the United States.

Certain strategic partners may have unique requirements for their applications and systems. Assisting the various strategic partners may strain our research and development and manufacturing resources. To the extent that we are not able to timely assist our strategic partners, the commercialization of their products will likely be delayed.

Certain strategic partners may fail to deliver products that satisfy market requirements, or such products may fail to perform properly.

We have limited access to partner and distributor confidential corporate information. A sudden unexpected change in ownership or strategy or other material event due to information of which we are not currently aware could adversely impact partner purchases of our products.

Partners tend to order in bulk prior to the production of new lots of their products and prior to major product development initiatives.  The frequency of these bulk purchases is difficult to predict and may cause large fluctuations in microsphere sales quarter to quarter.

If third-party payors increasingly restrict payments for healthcare expenses or fail to adequately pay for multi-analyte testing, we may experience reduced sales which would hurt our business and our business prospects.

Third-party payors, such as government entities and government-sponsored healthcare programs (e.g. Medicare, Medicaid, Tricare), health maintenance organizations, preferred provider organizations and other private or commercial insurers are continually seeking to reduce healthcare expenses. Increasingly, third-party payors are challenging the utilization of and prices charged for medical services, including clinical diagnostic tests. Some payors are attempting to contain costs by limiting coverage, reducing reimbursement and increasing patient cost-sharing obligations. The federal government has implemented and continues to utilize cost-cutting strategies for government-sponsored healthcare programs, including coverage limitations and reimbursement rate reductions required by the Health Reform Law. In some cases, commercial payors are influenced by government-sponsored healthcare programs and policies. Therefore, coverage and reimbursement from commercial payors may be negatively impacted as a result of changes in government-sponsored healthcare programs. Further, cost containment initiatives by governmental or educational entities or programs may reduce funding for genetic research and development activities and retard the growth of the genetic testing market.

Without adequate coverage or reimbursement, consumer demand for tests could decrease. Decreased demand could cause our direct customers or strategic partners to reduce purchases or to cancel programs or development activities, which could cause sales of our products and services to fall. In addition, decreased demand could place pressure on us, or our direct customers and strategic partners, to lower prices on these products or services, resulting in lower margins. Reduced sales or margins by us, or our direct customers and strategic partners, would adversely affect our business, profitability and business prospects.

As we continue to expand our business, we may experience problems in scaling our manufacturing operations, or delays or component shortages that could limit the growth of our revenue.

As we continue to expand our manufacturing capabilities in order to meet our growth objectives, we may not be able to produce sufficient quantities of products or maintain consistency between differing lots of consumables. If we encounter difficulties in scaling our manufacturing operations as a result of, among other things, quality control and quality assurance issues and availability of components and raw material supplies, we will likely experience reduced sales of our products, increased repair or re-engineering costs due to product returns, and defects and increased expenses due to switching to alternate suppliers, any of which would reduce our revenues and gross margins.


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We presently outsource certain aspects of the assembly of our systems to contract manufacturers. Because of a long lead-time to delivery, we are required to place orders for a variety of items well in advance of scheduled production runs. We have increased our flexibility to purchase strategic components within shorter lead times by entering into supply agreements with the suppliers of these components. Although we attempt to match our parts inventory and production capabilities to estimates of marketplace demand, to the extent system orders materially vary from our estimates, we may experience continued constraints in our systems production and delivery capacity, which could adversely impact revenue in a given fiscal period. Should our need for raw materials and components used in production continue to fluctuate, we could incur additional costs associated with either expediting or postponing delivery of those materials. In an effort to control costs we have implemented a lean production system. Managing the change from discrete to continuous flow production requires time and management commitment. Lean initiatives and limitations in our supply chain capabilities may result in part shortages that delay shipments and cause fluctuations in revenue in a given period.

We currently purchase certain key components of our product line from a limited number of outside sources and, in the case of some components, a single source, and these components may only be available through a limited number of providers. We do not have agreements with all of our suppliers. While we currently believe that we will be able to satisfy our forecasted demand for our products, the failure to find alternative suppliers in the event of any type of supply failure at any of our current vendors at reasonably comparable prices could have a material adverse effect on our business, financial condition and results of operations.  Additionally, we have entered into supply agreements with most of our suppliers of strategic reagents and component subassemblies to help ensure component availability, and flexible purchasing terms with respect to the purchase of such components.  If our suppliers discontinue production of a key component, we will be required to revalidate and may be required to resubmit a previously cleared product.  Our reliance on our suppliers and contract manufacturers exposes us to risks including:

the possibility that one or  more of our suppliers or our assemblers that do not have supply agreements with us could terminate their services at any time without penalty;

natural disasters such as earthquakes, tsunamis, and floods that impact our suppliers;

the potential obsolescence and/or inability of our suppliers to obtain required components;

the potential delays and expenses of seeking alternate sources of supply or manufacturing services;

the inability to qualify alternate sources without impacting performance claims of our products;

reduced control over pricing, quality and timely delivery due to the difficulties in switching to alternate suppliers or assemblers; and

increases in prices of raw materials and key components.

Consequently, in the event that supplies of components or work performed by any of our assemblers are delayed or interrupted for any reason, our ability to produce and supply our products could be impaired.

If the quality of our products does not meet our customers’ expectations, then our reputation could suffer and ultimately our sales and operating earnings could be negatively impacted.
 
In the course of conducting our business, we must adequately address quality issues associated with our products and services, including defects in our engineering, design, and manufacturing processes, as well as defects in third-party components included in our products. Because our instruments and consumables are highly complex, the occurrence of defects may increase as we continue to introduce new products and services and as we rapidly scale up manufacturing to meet increased demand for our products and services. Although we have established internal procedures to minimize risks that may arise from product quality issues, there can be no assurance that we will be able to eliminate or mitigate occurrences of these issues and associated liabilities. In addition, identifying the root cause of quality issues, particularly those affecting reagents and third-party components, may be difficult, which increases the time needed to address quality issues as they arise and increases the risk that similar problems could recur. Finding solutions to quality issues can be expensive and we may incur significant costs or lost revenue in connection with, for example, shipment holds, product recalls, and warranty or other service obligations. In addition, quality issues can impair our relationships with new or existing customers and adversely affect our brand image, and our reputation as a producer of high quality products could suffer, which could adversely affect our business, financial condition, or results of operations.


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Our operations in foreign countries expose us to certain risks inherent in doing business internationally, which may adversely affect our business, results of operations or financial condition.
 
We expect that revenue from U.S. sales will continue to represent the majority of our total revenue, but our future profitability will depend in part on our ability to grow and ultimately maintain our product sales in foreign markets, particularly in Asia and Europe.  In fiscal 2014 , approximately 17% of our revenue was derived from sales to non-U.S. customers, with approximately 8% of revenue from sales to customers in Europe. As such, a significant slowdown in these foreign economies or lower investments in new infrastructure could have a negative impact on our sales. We also purchase a portion of the materials included in our products from overseas sources.  As a result of acquisitions and organic growth, we have operations and manufacturing facilities in foreign countries that expose us to certain risks. For example, fluctuations in exchange rates may affect our revenues, expenses and results of operations as well as the value of our assets and liabilities as reflected in our financial statements. We are also subject to other types of risks, including the following:

changes in or interpretations of foreign law that may adversely affect our ability to sell our products, perform services or repatriate profits to the United States;

tariffs, customs and other barriers to importing/exporting materials and products in a cost effective and timely manner;

hyperinflation or economic or political instability in foreign countries;

imposition of limitations on or increase of withholding and other taxes on remittances and other payments by foreign subsidiaries;

conducting business in places where business practices and customs are unfamiliar and unknown;

difficulties in staffing and managing international operations;

the burden of complying with complex and changing foreign regulatory requirements; 

difficulties in accounts receivable collections; 

the imposition of restrictive trade policies, including export restrictions;

worldwide political conditions;

the imposition of inconsistent laws or regulations;

reduced protection of intellectual property rights and trade secrets in some foreign countries;

the imposition or increase of investment requirements and other restrictions by foreign governments;

the interpretation of contractual provisions governed by foreign laws in the event of a contract dispute;

uncertainties relating to foreign laws, including labor laws, and legal proceedings;

the burden of complying with foreign and international laws and treaties;

significant currency fluctuations; 

the burden of complying with and changes in international taxation policies;

having to comply with a variety of U.S. laws, including the Foreign Corrupt Practices Act; and

having to comply with U.S. export control regulations and policies that restrict our ability to communicate with non-U.S. employees and supply foreign affiliates, partners and customers.


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Our international sales and purchases are subject to numerous U.S. and foreign laws and regulations, including, without limitation, tariffs, trade barriers, regulations relating to import-export control, technology transfer restrictions, the International Traffic in Arms Regulation promulgated under the Arms Export Control Act, the Foreign Corrupt Practices Act and the anti-boycott provisions of the U.S. Export Administration Act. If we fail to comply with these laws and regulations, we could be liable for administrative, civil or criminal liabilities, and in the extreme case, we could be suspended or debarred from government contracts or have our export privileges suspended, which could have a material adverse effect on our business.

International sales and purchases are also subject to a variety of other risks, including risks arising from currency fluctuations, collection issues and taxes. Our international sales are subject to variability as our selling prices become less competitive in countries with currencies that are declining in value against the U.S. Dollar and more competitive in countries with currencies that are increasing in value against the U.S. Dollar. In addition, our international purchases can become more expensive if the U.S. Dollar weakens against the foreign currencies in which we are billed.

We have not entered into any foreign currency derivative financial instruments; however, we may choose to do so in the future in an effort to manage or hedge our foreign exchange rate risk.

The capital spending policies of our customers have a significant effect on the demand for our products.

Our customers include clinical diagnostic, pharmaceutical, biotechnological, chemical and industrial companies, and the capital spending policies of these companies can have a significant effect on the demand for our products. These policies are based on a wide variety of factors, including general or local economic conditions, governmental regulation or price controls, the resources available for purchasing research equipment, the spending priorities among various types of analytical equipment and the policies regarding capital expenditures during recessionary periods. Any decrease in capital spending by life sciences companies could cause our revenues to decline. As a result, we are subject to significant volatility in revenue. Therefore, our operating results can be materially affected (negatively and positively) by the spending policies and priorities of our customers.

If we become subject to claims relating to improper handling, storage or disposal of hazardous materials, we could incur significant cost and time to comply.

Our research and development processes involve the controlled storage, use and disposal of hazardous materials, including biological hazardous materials. We are subject to foreign, federal, state and local regulations governing the use, manufacture, storage, handling and disposal of materials and waste products. We may incur significant costs complying with both existing and future environmental laws and regulations. In particular, we are subject to regulation by the Occupational Safety and Health Administration (OSHA) and the Environmental Protection Agency (EPA), and to regulation under the Toxic Substances Control Act and the Resource Conservation and Recovery Act in the United States OSHA or the EPA may adopt regulations that may affect our research and development programs. We are unable to predict whether any agency will adopt any regulations that would have a material adverse effect on our operations.

The risk of accidental contamination or injury from hazardous materials cannot be eliminated completely. In the event of an accident, we could be held liable for any damages that result, and any liability could exceed the limits or fall outside the coverage of our workers’ compensation insurance. We may not be able to maintain insurance on acceptable terms, if at all.

If a catastrophe strikes our manufacturing or warehousing facilities, we may be unable to manufacture or distribute our products for a substantial amount of time and we may experience inventory shortfalls, which would cause us to experience lost revenues.

Our manufacturing facilities are located in Austin, Madison and Toronto. Although we have business interruption insurance, our facilities and some pieces of manufacturing equipment are difficult to replace and could require substantial replacement lead-time. Various types of disasters, including tornadoes, fires, floods and acts of terrorism, may affect our manufacturing facilities. In the event our existing manufacturing facilities or equipment are affected by man-made or natural disasters, we may be unable to manufacture products for sale or meet customer demands or sales projections. If our manufacturing operations were curtailed or ceased, it would seriously harm our business.


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The "conflict minerals" rule of the Securities and Exchange Commission, or SEC, has caused us to incur additional expenses, could limit the supply and increase the cost of certain metals used in manufacturing our products, and could make us less competitive in our target markets.

On August 22, 2012, the SEC adopted a rule requiring disclosure by public companies of the origin, source and chain of custody of specified minerals, known as conflict minerals, that are necessary to the functionality or production of products manufactured or contracted to be manufactured. The rule requires companies to obtain sourcing data from suppliers, engage in supply chain due diligence, and file annually with the SEC a specialized disclosure report on Form SD covering the prior calendar year, commencing with calendar year 2013. The rule could limit our ability to source at competitive prices and to secure sufficient quantities of certain minerals used in the manufacture of our products, specifically tantalum, tin, gold and tungsten, as the number of suppliers that provide conflict-free minerals may be limited. We may incur material costs associated with complying with the disclosure requirements, such as costs related to the determination of the origin, source and chain of custody of the minerals used in our products, the adoption of conflict minerals-related governance policies, processes and controls, and possible changes to products or sources of supply as a result of such activities. Within our supply chain, we may not be able to sufficiently verify the origins of the relevant minerals used in our products through the data collection and due diligence procedures that we implement, which may harm our reputation. Furthermore, we may encounter challenges in satisfying those customers that require that all of the components of our products be certified as conflict free, and if we cannot satisfy these customers, they may choose a competitor’s products. We continue to investigate the presence of conflict materials within our supply chain.

If we become subject to product liability claims, we may be required to pay damages that exceed our insurance coverage.

Our business exposes us to potential product liability claims that are inherent in the testing, production, marketing and sale of biotechnological, human (including genetic) diagnostic and therapeutic products. Although we believe that we are reasonably insured against these risks and we generally have limited indemnity protections in our supplier agreements, there can be no assurance that we will be able to obtain insurance in amounts or scope sufficient to provide us with adequate coverage against all potential liabilities. A product liability claim in excess of our insurance coverage or claim that is outside or exceeds our indemnity protections in our supplier agreements or a recall of one of our products would have to be paid out of our cash reserves.

Our success depends on building and sustaining our technology infrastructure.
 
We are increasingly dependent on information technology to enable us to improve the effectiveness of our operations and to maintain financial accuracy and efficiency. If we do not allocate and effectively manage the resources necessary to build, implement and sustain the proper technology infrastructure, we could be subject to transaction errors, the inability to properly support and service our customers, processing inefficiencies, loss of customers, business disruptions or loss of or damage to intellectual property through security breach or cyber-attack, each of which could materially adversely affect our business.

Our government contracts and administrative processes and systems related to such contracts are subject to audits and cost adjustments by the federal government, which could reduce our revenue, disrupt our business or otherwise adversely affect our results of operations.

We must comply with and are affected by laws and regulations relating to the award, administration, and performance of U.S. Government contracts. A violation of specific laws and regulations could result in the imposition of fines and penalties or the termination of our contracts, as well as suspension or debarment. These fines and penalties could be imposed for failing to follow procurement integrity and bidding rules, employing improper billing practices or otherwise failing to follow rules relating to billing on cost-type contracts, receiving or paying kickbacks, or filing false claims, among other potential violations. In addition, we could suffer serious reputational harm if allegations of impropriety related to such contracts were made against us.

In addition, our contracts with the U.S. Government are subject to future funding and are subject to the right of the government to terminate the contracts in whole or in part for its convenience. There is pressure for the U.S. Government to reduce spending, and non-appropriation of funds or the termination for the government’s convenience of our contracts could cause our actual results of operations to differ materially and adversely from those anticipated. Further, for U.S. Government contracts that include option years, the U.S. Government generally has the unilateral right to not exercise option periods, and may not exercise an option period if the agency is not satisfied with our performance on the contract or does not receive funding to continue the program, among other reasons.


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Further, federal government agencies, including the Defense Contract Audit Agency (DCAA), routinely audit and investigate government contracts and government contractors’ administrative processes and systems. These agencies review our performance on government contracts, pricing practices, cost structure and compliance with applicable laws, regulations and standards. They also review our compliance with government regulations and policies and the adequacy of our internal control systems and policies, including our purchasing, accounting, estimating, compensation and management information processes and systems. Any costs found to be improperly allocated to a specific government contract, unallowable or unreasonable will not be reimbursed, and any such costs already reimbursed must be refunded and certain penalties may be imposed. Moreover, if any of the administrative processes and systems related to such contracts is found not to comply with governmental requirements, we may be subjected to increased government scrutiny that could delay or otherwise adversely affect our ability to compete for or perform government contracts or collect our revenue in a timely manner. Therefore, an unfavorable outcome of an audit of our government contracts by the DCAA or another government agency could cause our actual results of operations to differ materially and adversely from those anticipated. Each of these outcomes could adversely affect our results of operations. We do not know the outcome of any existing or future audits and if any future audit adjustments significantly exceed our estimates, our profitability could be adversely affected.

We rely on the innovation and resources of larger industry participants and public programs in our partnership business to advance genomic research and educate physicians/clinicians on genetic diagnostics.

The linkages between genetic anomalies that our products detect and the underlying disease states are not always fully medically correlated. Additionally, the availability of correlated genetic markers is dependent on significant investment in genomic research, often funded through public programs for which there are no assurances of on-going support. Should any government limit patent rights to specific genetic materials, private investment in this area could also be significantly curtailed. In addition, the adoption of genetic diagnostics is dependent to a great extent on the education and training of physicians and clinicians. We do not have the resources to undertake such training, and are relying on larger industry participants and professional medical colleges to establish, communicate and educate physicians and clinicians on best practices related to genetic diagnostics.

We are subject to evolving legislative, regulatory, judicial and ethical standards on use of technology and biotechnology.

The adoption of genetic testing is occurring within the broader context of a myriad of decisions related to genetic patenting and genotyping. Issues associated with health insurance, data access, intellectual property protection, national and international legislative and regulatory initiatives and other variables may have a significant impact on the wide-spread adoption of genetic testing or on specific segments or tests within the genetic testing market.

Our effective tax rate may fluctuate and we may incur obligations in tax jurisdictions in excess of amounts that have been accrued.

We are subject to income taxes in the United States and various foreign jurisdictions.  Our effective tax rate may be lower or higher than experienced in the past due to numerous factors, including a change in the mix of our profitability from country to country, the establishment or release of valuation allowances against our deferred tax assets, and changes in tax laws.  In addition, we take certain income tax positions on our tax returns that we recognize in our financial statements if it is more likely than not they will not withstand challenge by tax authorities. We are subject to tax audits in various jurisdictions, including the United States, and tax authorities may disagree with certain positions we have taken and assess additional taxes.  There can be no assurance that we will accurately predict the outcomes of these audits, and the actual outcomes could have a material impact on our net income or financial condition. Any of these factors could cause us to experience an effective tax rate significantly different from previous periods or our current expectations, which could have an adverse effect on our business and results of operations. The recognition of deferred tax assets is reduced by a valuation allowance if it is more likely than not that the tax benefits will not be realized. We regularly review our deferred tax assets for recoverability and establish a valuation allowance based on historical income, projected future income, the expected timing of the reversals of existing temporary differences and the implementation of tax-planning strategies.
 
Changes in tax laws or tax rulings could materially impact our effective tax rate. There are several proposals to reform U.S. tax rules being considered by U.S. law makers, including proposals that may reduce or eliminate the deferral of U.S. income tax on our unrepatriated earnings, potentially requiring those earnings to be taxed at the U.S. federal income tax rate, reduce or eliminate our ability to claim foreign tax credits, and eliminate various tax deductions until foreign earnings are repatriated to the U.S. Our future reported financial results may be adversely affected by tax rule changes which restrict or eliminate our ability to claim foreign tax credits or deduct expenses attributable to foreign earnings, or otherwise affect the treatment of our unrepatriated earnings.


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Our stock price has been and is likely to continue to be volatile.

The trading price of our common stock has been and is likely to continue to be highly volatile and subject to wide fluctuations in price. This volatility is in response to various factors, many of which are beyond our control, including:

actual or anticipated variations in quarterly operating results from historical results or estimates of results prepared by securities analysts;

developments in patents or other intellectual property rights and litigation;

new, or changes in, recommendations, guidelines or studies that could affect the use of our products;

announcements of acquisitions or of technological innovations or new products or services by us or our competitors;

developments in relationships with our partners, customers and suppliers;

additions or departures of key personnel;

announcements by us of significant acquisitions, strategic partnerships, joint ventures or capital commitments;

conditions or trends in the life science, biotechnology and pharmaceutical industries, including the regulatory environment;

published studies and reports relating to the comparative efficacy of products and markets in which we participate;

changes in financial estimates by securities analysts;

general worldwide economic conditions and interest rates;

the success or lack of success of integrating our acquisitions;

instability in the United States and other financial markets and the ongoing and possible escalation of unrest in the Middle East, other armed hostilities or further acts or threats of terrorism in the United States or elsewhere;

sales of our common stock; and

the potential adverse impact of the secondary trading of our stock on foreign exchanges which are subject to less regulatory oversight than the NASDAQ Global Select Market, without our permission, and the activity of the market makers of our stock on such exchanges, including the risk that such market makers may engage in naked short sales and/or other deceptive trading practices which may artificially depress or otherwise affect the price of our common stock on the NASDAQ Global Select Market.

In addition, the stock market in general, and the NASDAQ Global Select Market and the market for technology companies in particular, has experienced significant price and volume fluctuations that have often been unrelated or disproportionate to the operating performance of those companies. Further, there has been particular volatility in the market prices of securities of life sciences companies. These broad market and industry factors may seriously harm the market price of our common stock, regardless of our operating performance. In the past, following periods of volatility in the market price of a company’s securities, securities class action litigation has often been instituted. A securities class action suit against us could result in substantial costs, potential liabilities and the diversion of management’s attention and resources.

We may incur impairment charges on our goodwill and intangible assets which would reduce our earnings.

We are subject to Accounting Standards Codification (ASC) 350 “Goodwill and Other” (ASC 350) which requires that goodwill and other intangible assets that have an indefinite life be tested at least annually for impairment. Goodwill and other intangible assets with indefinite lives must also be tested for impairment between the annual tests if a triggering event occurs that would likely reduce the fair value of the asset below its carrying amount. As of December 31, 2014 , goodwill and other intangible assets with indefinite lives represented approximately 30% of our total assets. In the future, if we determine that there has been impairment, our financial results for the relevant period would be reduced by the amount of the impairment, net of tax effects, if any.


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Anti-takeover provisions in our certificate of incorporation, bylaws and Delaware law could make a third party acquisition of us difficult.

Our certificate of incorporation and bylaws contain provisions that could make it more difficult for a third party to acquire us, even if doing so would be beneficial to our stockholders. We are also subject to certain provisions of Delaware law that could delay, deter or prevent a change in control of us. These provisions could limit the price that investors might be willing to pay in the future for shares of our common stock.

ITEM 1B. UNRESOLVED STAFF COMMENTS

None.

ITEM 2. PROPERTIES

Our principal research and development, manufacturing and administrative facilities are located in Austin, Texas, and consist of approximately 184,000 square feet of leased space pursuant to lease agreements which expire between July 31, 2017 and April 30, 2020. We have options to renew these lease agreements in Austin.  We maintain 20,000 square feet of leased office space in The Netherlands, approximately 34,700 square feet of leased office and manufacturing space in Toronto, Canada and approximately 35,000 square feet of leased office and manufacturing space in Madison, Wisconsin. In addition, we maintain approximately 3,900 square feet and approximately 2,000 square feet of leased office space in Shanghai and Beijing, respectively, People's Republic of China, approximately 2,900 square feet of lease office space in Hong Kong and approximately 4,000 square feet of leased office space in Tokyo, Japan.  

ITEM 3. LEGAL PROCEEDINGS

On August 30, 2012 Abbott Laboratories, Inc. (Abbott) was named as a defendant in the complaint filed by ENZO Life Sciences, Inc. (ENZO) in U.S. District Court in Delaware for alleged infringement of its US Patent 7,064,197 as a result of Abbott's distribution of Luminex's xTAG Respiratory Viral Panel.  Luminex and Abbott have entered into an agreement requiring Luminex to defend and indemnify Abbott for any alleged patent infringement resulting from its distribution of Luminex's Respiratory Viral Panel. The complaint seeks unspecified monetary damages and injunctive relief.  Abbott filed an answer to the complaint on October 15, 2012.  On November 30, 2012, Luminex intervened in the lawsuit. On January 2, 2013 ENZO filed additional claims against Luminex, alleging infringement of US Patent 7,064,197 resulting from Luminex's sale of its xTAG, FlexScript LDA, SelecTAG, and xMAP Salmonella Serotyping Assay products and alleging infringement of US Patent 8,097,405 resulting from Luminex's sale of Multicode products.  Luminex filed an answer to ENZO's additional claims on January 28, 2013.  On October 2, 2013 ENZO filed additional claims against Luminex, alleging infringement of U.S. Patent 6,992,180 resulting from Luminex’s sale of Multicode products.  Luminex filed an answer to ENZO’s additional claims on October 21, 2013.  A trial date has not been set. The parties to the lawsuit have engaged in the discovery process.

On November 1, 2013 Irori Technologies, Inc. (Irori) filed a complaint against Luminex in U.S. District Court in the Southern District of California, alleging infringement of its U.S. Patent 6,372,428, 6,416,714, and 6,352,854 resulting from Luminex’s sale of its xMAP and xTAG based products.   Luminex filed a motion to dismiss on January 9, 2014.  Irori filed its response to our motion to dismiss on February 7, 2014.  The court granted the motion to dismiss without prejudice on February 25, 2014.  On March 18, 2014, Irori filed an amended complaint, again alleging infringement of its US Patent 6,372,428, 6,416,714, and 6,352,854 resulting from Luminex’s sale of its xMAP and xTAG based products.  The complaint seeks unspecified monetary damages and injunctive relief.  Luminex filed an answer to Irori’s amended complaint on April 2, 2014.  On June 10, 2014, Luminex filed with the USPTO’s Patent Trial and Appeal Board a total of five petitions for inter partes review seeking to invalidate the claims of the three patents involved in the litigation.   On June 17, 2014 Luminex filed a motion to stay proceedings in the district court pending the USPTO’s resolution of the inter partes review of Irori’s patents.  Irori filed its opposition to the motion to stay on July 7, 2014, and Luminex filed a reply on July 14, 2014.  On July 16, 2014, the court granted Luminex’s motion to stay the case until the earlier of i) a determination by the United States Patent and Trademark Office that reexamination proceedings will not take place or ii) the conclusion of reexamination proceedings and appeals.  On December 11, 2014, the USPTO's Patent Trial and Appeal Board instituted review on all five inter partes review petitions that Luminex filed.  Irori’s responses to the petitions
are due February 26, 2015, and oral argument (if requested by either party) is scheduled for August 5, 2015.


34

Table of Contents

When and if it appears probable in management's judgment, and based upon consultation with outside counsel, that we will incur monetary damages or other costs in connection with any claims or proceedings, and such costs can be reasonably estimated, we record the estimated liability in the financial statements.  If only a range of estimated losses can be estimated, we record an amount within the range that, in management's judgment, reflects the most likely outcome; if none of the estimates within that range is a better estimate than any other amount, we record the liability at the low end of the range of estimates. Any such accrual would be charged to expense in the appropriate period. We disclose significant contingencies when the loss is not probable and/or the amount of the loss is not estimable, when we believe there is at least a reasonable possibility that a loss has been incurred. We recognize costs associated with legal proceedings in the period in which the services were provided. There can be no assurance that we will successfully defend these suits or that a judgment against us would not materially adversely affect our operating results.

ITEM 4. MINE SAFETY DISCLOSURES

None.


35


PART II

ITEM 5. MARKET FOR THE REGISTRANT'S COMMON EQUITY, RELATED STOCKHOLDER MATTERS AND ISSUER PURCHASES OF EQUITY SECURITIES

Market Information

Our common stock is traded on the NASDAQ Global Select Market under the symbol “LMNX.”

The following table sets forth the range of high and low sale prices on The NASDAQ Global Select Market, as applicable, for each quarter during 2014 and 2013 .  On February 23, 2015 , the last reported sale price of our common stock was $ 16.21 per share.

2014
 
High
 
Low
First Quarter
 
$
20.39

 
$
17.22

Second Quarter
 
$
20.24

 
$
15.74

Third Quarter
 
$
20.00

 
$
16.05

Fourth Quarter
 
$
21.69

 
$
17.04

 
 
 
 
 
2013
 
High
 
Low
First Quarter
 
$
19.39

 
$
16.23

Second Quarter
 
$
21.52

 
$
15.39

Third Quarter
 
$
24.10

 
$
19.52

Fourth Quarter
 
$
20.52

 
$
17.15

 
Holders

As of February 23, 2015 , we had 477 holders of record of our common stock. Because many of our shares are held by brokers and other institutions on behalf of stockholders, we are unable to estimate the total number of beneficial stockholders represented by these record holders.

Dividends

We have never declared or paid cash dividends on our common stock and, while this policy is subject to periodic review by our board of directors, we currently intend to retain any earnings for use in our business and do not anticipate paying cash dividends in the foreseeable future.  Our ability to declare dividends may also from time to time be limited by the terms of any applicable credit facility. Luminex does not currently have a credit facility.

Recent Sales of Unregistered Securities

There were no sales of unregistered securities of Luminex during the twelve months ended December 31, 2014 .


36


Performance Graph

The following graph compares the change in Luminex’s cumulative total stockholder return on its common shares with the NASDAQ Composite Index and the NASDAQ Biotechnology Index.
 
12/09

 
12/10

 
12/11

 
12/12

 
12/13

 
12/14

Luminex Corporation
100.00

 
122.44

 
142.20

 
112.52

 
129.94

 
125.65

NASDAQ Composite
100.00

 
117.61

 
118.70

 
139.00

 
196.83

 
223.74

NASDAQ Biotechnology
100.00

 
106.73

 
122.40

 
166.72

 
286.55

 
379.71



37


Issuer Purchases of Equity Securities

The stock repurchase activity for the fourth quarter of 2014 was as follows:

ISSUER PURCHASES OF EQUITY SECURITIES
Period
Total Number of Shares Purchased (1)
 
Average Price Paid per Share ($)
 
Total Number of Shares Purchased as Part of Publicly Announced Plans or Programs
 
Approximate Dollar Value of Shares that May Yet Be Purchased Under the Plans or Programs
10/1/2014 - 10/31/2014
212

 
19.77

 

 
$

11/1/2014 - 11/30/2014

 

 

 
$

12/1/2014 - 12/31/2014
1,481

 
18.76

 

 
$

Total Fourth Quarter
1,693

 
18.89

 

 
$


(1)
Total shares purchased includes shares attributable to the withholding of shares by Luminex to satisfy the payment of tax obligations related to the vesting of restricted shares.


38


ITEM 6. SELECTED FINANCIAL DATA

The following selected consolidated financial data should be read in conjunction with the Consolidated Financial Statements and Notes thereto and with Item 7 “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and other financial data included elsewhere in this Annual Report on Form 10-K. The consolidated statement of comprehensive income data for the years ended December 31, 2014 , 2013 and 2012 and the consolidated balance sheet data at December 31, 2014 and 2013 are derived from the audited consolidated financial statements included elsewhere in this Annual Report on Form 10-K. The consolidated results of operations data for the years ended December 31, 2011 and 2010 and the consolidated balance sheet data at December 31, 2012 , 2011 and 2010 are derived from audited consolidated financial statements not included in this Annual Report on Form 10-K.


 
Year Ended December 31,
 
2014
 
2013
 
2012
 
2011
 
2010
 
(in thousands, except per share data)
Consolidated Results of Operations Data:
 
 
 
 
 
 
 
 
 
Total revenue
$
226,983

 
$
213,423

 
$
202,582

 
$
184,339

 
$
141,557

Gross profit
159,852

 
143,626

 
142,574

 
125,490

 
96,377

Income from operations
28,137

 
4,767

 
22,716

 
23,843

 
11,251

Net income
39,043

 
7,096

 
12,407

 
14,474

 
5,231

Net income applicable to common stockholders
$
39,043

 
$
7,096

 
$
12,407

 
$
14,474

 
$
5,231

Net income per common share, basic
$
0.94

 
$
0.17

 
$
0.30

 
$
0.35

 
$
0.13

Shares used in computing net income per common share (basic)
41,558

 
40,799

 
40,927

 
41,262

 
41,030

Net income per common share, diluted
$
0.93

 
$
0.17

 
$
0.30

 
$
0.34

 
$
0.12

Shares used in computing net income per common share (diluted)
42,156

 
41,986

 
41,884

 
42,537

 
42,438


 
At December 31,
 
2014
 
2013
 
2012
 
2011
 
2010
 
(in thousands)
Consolidated Balance Sheet Data:
 
 
 
 
 
 
 
 
 
Cash and cash equivalents
$
91,694

 
$
67,924

 
$
42,789

 
$
58,282

 
$
89,487

Short-term investments

 
4,517

 
13,607

 
42,574

 
28,404

Long-term investments
15,975

 

 
3,000

 
6,151

 
6,021

Working capital
146,654

 
117,874

 
100,989

 
136,933

 
151,938

Total assets
357,526

 
306,046

 
297,175

 
282,647

 
265,810

Total long-term debt

 
463

 
1,702

 
2,573

 
3,351

Total stockholders' equity
319,994

 
269,620

 
259,667

 
250,855

 
234,865



39


ITEM 7.  MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS

The following information should be read in conjunction with the Consolidated Financial Statements and the accompanying Notes included below in Item 8 and “Risk Factors” included above in Item 1A of this Annual Report on Form 10-K.  This discussion contains forward-looking statements that involve risks and uncertainties.  Our actual results may differ materially from those anticipated in these forward-looking statements.

Overview

We develop, manufacture and sell proprietary biological testing technologies and products with applications throughout the diagnostics and life sciences industries.  These industries depend on a broad range of tests, called bioassays, to perform diagnostic tests and conduct life science research.  Our xMAP (Multi-Analyte Profiling) technology, an open architecture, multiplexing technology, allows simultaneous analysis of up to 500 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, and for clinical diagnostics, genetic analysis, bio-defense, food safety and biomedical research. In addition to our xMAP technology, our other offerings include our proprietary MultiCode technology, used for real-time PCR (Polymerase Chain Reaction) and multiplexed PCR assays. Our MultiCode assay chemistry is a flexible platform for both real-time PCR and multiplex PCR-based applications. Our MultiCode technology is powered by a base pair (man-made nucleotide pair isoC:isoG in addition to the A:T and G:C nucleotide pairs found in nature) that does not exist in nature, but can be combined with natural base pairs, and incorporated into a wide range of molecular diagnostic applications. The MultiCode base pair is recognized by naturally occurring enzymes and can be used for the specific placement of reporter molecules and to increase the molecular recognition capabilities of hybridization-based assays. The MultiCode base pair enables solutions to complex molecular challenges that were previously not possible with natural nucleic acid alone.

Our end user customers and partners, which include laboratory professionals performing research, clinical laboratories performing tests on patients as ordered by physicians and other laboratories, have a fundamental need to perform high quality testing as efficiently as possible.  Luminex employs a two-pronged business model.  We have licensed our xMAP technology to partner companies, which in turn then develop products that incorporate the xMAP technology into products that our partners sell to end users. We develop and manufacture the proprietary xMAP laboratory instrumentation and the proprietary xMAP microspheres and sell these products to our partners. Our partners then sell xMAP instrumentation and xMAP-based reagent consumable products, which run on the instrumentation, to the end user laboratory. As of December 31, 2014 , Luminex had 66 strategic partners, of which 46 have released commercialized reagent-based products utilizing our technology.

Luminex has several forms of revenue that result from our business model:

System revenue is generated from the sale of our xMAP multiplexing analyzers and peripherals.

Consumable revenue is generated from the sale of our dyed polystyrene microspheres, along with sheath and drive fluid.  Our larger commercial and development partners often purchase these consumables in bulk to minimize the number of incoming qualification events and to allow for longer development and production runs.

Royalty revenue is generated when a partner sells our proprietary microspheres to an end user, a partner sells a kit incorporating our proprietary microspheres to an end user or when a partner utilizes a kit to provide a testing result to a user.  End users can be facilities such as testing labs, development facilities and research facilities that buy prepared kits and have specific testing needs or testing service companies that provide assay results to pharmaceutical research companies or physicians.

Assay revenue is generated from the sale of our kits which are a combination of chemical and biological reagents and our proprietary xMAP bead technology used to perform diagnostic and research assays on samples as well as real-time PCR and multiplexed PCR assays using our proprietary MultiCode technology.

Service revenue is generated when a partner or other owner of a system purchases a service contract from us after the standard warranty has expired or pays us for our time and materials to service instruments.  Service contract revenue is amortized over the life of the contract and the costs associated with those contracts are recognized as incurred.


40


Other revenue consists of items such as training, shipping, parts sales, license revenue, grant revenue, contract research and development fees, milestone revenue and other items that individually amount to less than 5% of total revenue.

2014 Highlights

Consolidated revenue was $227.0 million  for 2014 , representing a 6% increase over revenue for 2013 .

System shipments of 950 multiplexing analyzers, which included 372 MAGPIX systems, resulting in cumulative life-to-date multiplexing analyzer shipments of 11,687, up 9% from a year ago.

Royalty revenue reflecting over $456 million of royalty bearing end user sales on our technology for the year, a 7% increase in royalty revenue over the prior year.

Assay revenue of $87.7 million, an 18% increase over 2013

Received FDA clearance to add new clinical targets and additional sample type for use with xTAG® Gastrointestinal Pathogen Panel.

Reimbursement Landscape

Over the past two years, the molecular diagnostic market has experienced what we believe to be a temporary deceleration in the utilization of molecular assays, particularly in the human genetics segment. This deceleration was driven by administrative issues associated with the new molecular diagnostic code system implemented by the Centers for Medicare and Medicaid Services (CMS) in 2013. After implementation of the new molecular diagnostic codes, a number of our laboratory customers experienced Medicare fee schedule reductions, delays in pricing and implementation of key molecular codes, denials of coverage for existing tests and delays in payment for tests performed by some payers, all of which resulted in lower than anticipated testing volumes for our customers and, therefore, decreased assay revenues in 2013. In addition, effective January 1, 2014, CMS began bundling Medicare payment for most clinical laboratory tests into hospital payment rates. As a result, most independent laboratories must now obtain payment from the hospital rather than directly billing Medicare. Despite these changes, based on feedback from our customers regarding the 2014 Medicare Clinical Laboratory Fee Schedule and the reinstatement in 2013 of coverage for Cystic Fibrosis genetic testing, the single largest test that was not being reimbursed, we believe that reimbursement challenges diminished in 2014. However, we may be impacted by future changes to the reimbursement landscape. Commercial payors may adopt coding and bundling requirements that are similar to those made by Medicare. Further, in April 2014, the Protecting Access to Medicare Act (PAMA) was enacted. Beginning in 2016, PAMA requires clinical laboratories to report to CMS the volume of each laboratory test and the price paid by private payors. CMS must set future Medicare fee schedules using weighted medians from these datasets. This requirement could exert downward pressure on Medicare reimbursement, because reimbursement rates for clinical laboratory services of commercial payors are often lower than rates paid by Medicare. We will continue to monitor the reimbursement landscape closely.

Consumables Sales and Royalty Revenue Trends

We have experienced significant fluctuations in consumable revenue over the past three years.  Overall, the fluctuations manifested themselves through periodic changes in volume from our largest bulk purchasing partners.  These customers account for more than 75% of our total consumable sales volume.  During 2015, we expect a contraction of approximately $10 million in consumable sales as the result of transient inventory challenges that our largest bulk purchasing partner is experiencing. We expect this lower level of purchasing to continue over the next several years. However, even though we experience variability in consumable revenue, the key indicator of the success of our partners’ commercialization efforts is the rising level of royalties and reported royalty bearing sales. We believe that our relationship with our largest bulk purchasing partner remains strong and they are continuing to invest in our technology. The royalty stream from our largest bulk purchasing partner has grown steadily, indicating further penetration and use of our technology within their market.
 
Change in Cash Position

Our cash, cash equivalents and investments increased by approximately $35.3 million for the year ended December 31, 2014 to $107.7 million from $72.4 million at December 31, 2013 .  The increase in cash, cash equivalents and investments is primarily attributable to strong operating cash flows of $49.3 million , coupled with $4.7 million in proceeds from our employee stock purchase plan (ESPP) and stock option exercises, which funded our capital expenditures of $17.1 million .

41


Segment Information

During the fourth quarter of 2014, in conjunction with the appointment of our new CEO, Luminex evaluated its historical reporting segments: the TSP segment and the ARP segment. As a result of this evaluation and based upon how our new Chief Executive Officer as Chief Operating Decision Maker (“CODM”) and our management team collectively is managing our business, we determined that the two former segments have become so integrated and interrelated that they no longer provide an accurate representation of our current business when reported separately. Additionally, we have taken actions to consolidate sales and service functions. Effective with the fourth quarter of 2014, we no longer have two operating segments and, accordingly, will present our business as one operating segment and one reporting unit. Accordingly, prior periods' information has been restated to conform to the current periods' presentation.

Future Operations

We expect our areas of focus over the next twelve months to be:

clinical validation and preparation for commercial launch of our ARIES system, the next generation sample-to-answer platform for our MultiCode-RTx technology, including in vitro diagnostic (IVD) assays;

development of the next generation multiplex chemistry, including the next generation of our Respiratory Viral Panel line of IVD assays;

continued execution of our pharmacogenetic (PGx) strategy;

continued execution of our direct sales strategy, including developing the infrastructure necessary to support our sales force and decreasing reliance on our distributors;

commercialization, regulatory clearance and market adoption of products, including commercialization of MultiCode analyte specific reagents outside of the United States;

maintenance and improvement of our existing products and the timely development, completion and successful commercial launch of our pipeline products;

adoption and use of our platforms and consumables by our customers for testing services;

expansion and enhancement of our installed base and our market position within our identified target market segments;

monitoring and mitigating the effect of the ongoing uncertainty in global finance markets and changes in government funding on planned purchases by end users; and

continued adoption and development of partner products incorporating Luminex technology through effective partner management.

We anticipate continued revenue concentration in our higher margin items (assays, consumables and royalties) contributing to favorable, but variable, gross margin percentages.  Additionally, we believe that a sustained investment in research and development is necessary in order to meet the needs of our marketplace and provide a sustainable new product pipeline.  We may experience volatility in research and development expenses as a percentage of revenue on a quarterly basis as a result of the timing of development expenses, clinical validation and clinical trials in advance of the commercial launch of our new products.


42


Critical Accounting Policies

The discussion and analysis of our financial condition and results of operations are based upon our consolidated financial statements, which have been prepared in accordance with United States generally accepted accounting principles (GAAP). The preparation of these financial statements requires us to make estimates and judgments that affect the reported amounts of assets, liabilities, revenues and expenses, and related disclosure of contingent assets and liabilities. We base our estimates on historical experience and on various other assumptions that are believed to be reasonable under the circumstances, the results of which form the basis for making judgments about the carrying values of assets and liabilities that are not readily apparent from other sources. The following is a discussion of our most critical accounting policies used in the preparation of our financial statements, and the judgments and estimates involved under each.  We also have other significant accounting policies that do not involve critical accounting estimates because they do not generally require us to make estimates and judgments that are difficult or subjective.  These are described in Note 1 of our Consolidated Financial Statements provided herein in Item 8.  Estimates and assumptions are reviewed periodically. Actual results may differ from these estimates under different assumptions or conditions.

Revenue Recognition.   Revenue is generated primarily from the sale of our products and related services, which are primarily support and maintenance services on our systems.  We recognize product revenue at the time the product is shipped provided there is persuasive evidence of an agreement, no right of return exists, the fee is fixed or determinable and collectability is probable.  There is no customer right of return in our sales agreements.  If the criteria for revenue recognition are not met at the time of shipment, the revenue is deferred until all criteria are met.

We regularly enter into arrangements for system sales that are multiple-element arrangements, including services such as installation and training, and multiple products.   These products or services are primarily delivered within a short time frame, approximately three to six months, of the agreement execution date and can also be performed by one of our third-party partners.  Based on the terms and conditions of the sale, we believe that these services can be accounted for separately from the delivered system as our delivered products have value to our customers on a stand-alone basis.  Items are considered to have stand-alone value when they are sold separately by any vendor or when the customer could resell the item on a stand-alone basis.   Accordingly, the estimated selling price of services or products not yet performed or delivered at the time of system shipment are deferred and recognized as revenue as such services are performed.  We have typically been able to determine the selling price of each deliverable in a multiple-element arrangement based on the price for such deliverable when it is sold separately.  If vendor specific objective evidence (VSOE) is not determinable and when third-party evidence is not available, we use the estimated selling price of a deliverable which is determined based upon our pricing policies, expected margin of the deliverable, geographical location and information gathered from customer negotiations.  

Within the diagnostic portion of our business, we provide systems and certain other hardware to customers through reagent rental agreements under which the customers commit to purchasing minimum quantities of disposable products at a stated price over a defined contract term, which is normally two to three years. All of these reagent rental agreements are operating leases. Instead of rental payments, we recover the cost of providing the system and other hardware in the amount we charge for our diagnostic assays and other disposables. Revenue is recognized over the defined contract term as assays and other disposable products are shipped. The depreciation costs associated with the system and other hardware are charged to cost of sales on a straight-line basis over the estimated life of the system. The costs to maintain these instruments in the field are charged to cost of sales as incurred.

Revenue from extended service agreements is deferred and recognized ratably over the term of the agreement.  We may also be entitled to milestone payments that are contingent upon our achieving a predefined objective. We follow the milestone method of recognizing revenue from milestones and milestone payments are recorded as revenue in full upon achievement of the milestone. Revenues from royalties related to agreements with strategic partners are recognized when such amounts are reported to the Company; therefore, the underlying end user sales may be related to prior periods.

Additional revenue is derived from cost-type contracts with the U.S. government. Revenue and profit under cost-plus service contracts is recognized as costs are incurred plus negotiated fees. Fixed fees on cost-plus service contracts are recognized ratably over the contract performance period as services are performed. Contract costs include labor and related employee benefits, subcontracting costs and other direct costs, as well as allocations of allowable indirect costs. For contract change orders, claims or similar items, judgment is required for estimating the amounts, assessing the potential for realization, and determining whether realization is probable. From time to time, facts develop that require revisions of revenue recognized or cost estimates. To the extent that a revised estimate affects the current or an earlier period, the cumulative effect of the revision is recognized in the period in which the facts requiring the revision become known. Reimbursements of certain costs, including certain hardware costs or out-of-pocket expenses are included in revenue with corresponding costs included in cost of revenue as costs are incurred.


43


Inventory.   Inventories are valued at the lower of cost or market value, with cost determined according to the standard cost method.  Inventories have been written down through an allowance for excess and obsolete inventories. The two major components of the allowance for excess and obsolete inventory are (i) a specific write-down for inventory items that we no longer use in the manufacture of our products or that no longer meet our specifications and (ii) a write-down against slow moving items for potential obsolescence. Inventory is reviewed on a regular basis and adjusted based on management’s review of inventories on hand compared to estimated future usage and sales.  While management believes that adequate write-downs for inventory obsolescence have been made in the consolidated financial statements, scientific and technological advances will continue and we could experience additional inventory write-downs in the future.  However, we do not believe this estimate is subject to significant variability.

Warranties.   We provide for the estimated cost of initial product warranties at the time revenue is recognized. While we engage in product quality programs and processes, our warranty obligation is affected by product failure rates, material usage and service delivery costs incurred in correcting a product failure. While management believes that adequate reserve has been made in the consolidated financial statements for product warranties, should actual product failure rates, material usage or service delivery costs differ from our estimates, revisions to the estimated warranty liability would be required.  However, we do not believe this estimate is subject to significant variability.

Purchase Price Allocation, Intangibles and Goodwill.  The purchase price allocation for acquisitions requires extensive use of accounting estimates and judgments to allocate the purchase price to the identifiable tangible and intangible assets acquired, including in-process research and development, and liabilities assumed based on their respective fair values.   Intangible assets with definite lives are amortized over the assets’ estimated useful lives using the straight-line method.   We periodically review the estimated useful lives of our identifiable intangible assets, taking into consideration any events or circumstances that might result in a diminished fair value or revised useful life.

Goodwill represents the excess of the cost over the fair value of the assets of the acquired business.  We evaluate the carrying value of goodwill on a reporting unit level annually, on October 1st of each year, or more frequently if there is evidence that certain events or changes in circumstances indicate that the carrying amount of these assets may not be recoverable.  As of October 1, 2014, all of our goodwill related to one reporting unit, our previous ARP segment, for goodwill impairment testing.  As the change to one reporting segment was made after October 1, 2014, we performed our analysis on goodwill under the ARP segment as of October 1, 2014. We have historically estimated the fair value of our ARP segment reporting unit using a discounted cash flow (DCF) analysis (“step one” analysis) of our projected future results or using a more qualitative analysis (“step zero” analysis) under the accounting guidance which allows an entity to first assess qualitative factors to determine if it is more likely than not that the fair value of a reporting unit is less than its carrying amount.  In fiscal 2012, we used the "step zero" analysis in our annual impairment analysis for goodwill. In performing the impairment test in the fourth quarter of 2013 and 2014, we used the "step one" analysis. This analysis requires a comparison of the carrying value of the reporting unit to the estimated fair value of the reporting unit.  Determining the fair value of goodwill is subjective in nature and often involves the use of estimates and assumptions. Our annual test, performed on the first day of the fourth quarter, did not result in an impairment charge for 2014 as the estimated fair value of the ARP segment reporting unit exceeded the carrying value by a significant enough amount that any reasonably likely change in the assumptions used in the analysis would not cause the carrying value to exceed the estimated fair value for the reporting unit as determined under our "step one" analysis.

We utilize an income approach based on a DCF analysis to determine fair value estimates, and then use market comparisons as a reasonableness check to ensure that neither the income approach nor the market comparisons yielded significantly different results. The income approach calculates the fair value by estimating the after-tax cash flows attributable to a reporting unit and then discounting the after-tax cash flows to a present value using a risk-adjusted discount rate.  Our estimates are based on revenue projections by product line, and include judgment based on historical growth and scheduled product approvals by the various governmental authorities.  We believe our assumptions are consistent with the plans and estimates used to manage the underlying businesses. The most significant assumptions used in the DCF methodology are the discount rate, based upon the estimated weighted average cost of capital (WACC), and the terminal growth rate, based upon strategic studies we commissioned and our own internal analysis.  We used a WACC rate of 14.5% and a terminal growth rate of 2.9% in our 2014 analysis. To determine our WACC rate, we performed a peer company analysis and considered the weighted average return on debt and equity, the updated risk-free interest rate, beta, equity risk premium, and entity specific size risk premium.  

Our analysis yielded an estimated fair value in excess of the carrying value by over 25% for 2014. Concurrent with the above analysis, we performed a sensitivity analysis based upon reasonably likely changes to determine if our DCF analysis would result in impairment if the following changes were made to our assumptions:  i) assumed the fair value of the reporting unit was lower by 10% or ii) future revenue was 75% of our projections in the DCF model.  Neither of these sensitivity analyses resulted in an estimated fair value less than the carrying amount of the reporting unit.


44


Accounting for Income Taxes.   We calculate our provision for income taxes using the asset and liability method, under which deferred tax assets and liabilities are recognized by identifying the temporary differences arising from the different treatment of items for tax and accounting purposes. In determining the future tax consequences of events that have been recognized in our financial statements or tax returns, judgment is required. Differences between the anticipated and actual outcomes of these future tax consequences could have a material impact on our consolidated results of operations or financial position. The recognition of deferred tax assets is reduced by a valuation allowance if it is more likely than not that the tax benefits will not be realized. We regularly review our deferred tax assets for recoverability and establish a valuation allowance based on historical income, projected future income, the expected timing of the reversals of existing temporary differences and the implementation of tax-planning strategies.  Undistributed earnings of our foreign subsidiaries are considered permanently reinvested and, accordingly, no provision for U.S. federal or state income taxes has been provided thereon.

The GAAP guidance requires recognition of the impact of a tax position in our financial statements only if that position is more likely than not to be sustained upon examination by taxing authorities, based on the technical merits of the position. Any interest and penalties related to uncertain tax positions will be reflected in income tax expense.   Determining the consolidated provision for income taxes involves judgments, estimates and the application of complex tax regulations.  We are required to provide for income taxes in each of the jurisdictions where we operate, including estimated liabilities for uncertain tax positions.  Although we believe that we have provided adequate liabilities for uncertain tax positions, the actual liability resulting from examinations by taxing authorities could differ from the recorded income tax liabilities and could result in additional income tax expense having a material impact on our consolidated results of operations.  Changes of estimates in our income tax liabilities are reflected in our income tax provision in the period in which the factors resulting in the change to our estimate become known to us.   We benefit from the tax credit incentives under the U.S. research and experimentation tax credit extended to taxpayers engaged in qualified research and experimental activities while carrying on a trade or business. The tax credit expired on December 31, 2014, and if not renewed under similar terms as in prior years, the result could have a material impact on our financial results.
 
We recognize excess tax benefits associated with share-based compensation to stockholders’ equity only when realized. When assessing whether excess tax benefits relating to share-based compensation have been realized, we follow the with-and-without approach, excluding any indirect effects of the excess tax deductions. Under this approach, excess tax benefits related to share-based compensation are not deemed to be realized until after the utilization of all other tax benefits available to us.

In March 2010, significant reforms to the healthcare system were adopted as law in the U.S. The law includes provisions that, among other things, imposes new and/or increased taxes. Specifically, the law requires the medical device industry to subsidize healthcare reform in the form of a 2.3% excise tax on U.S. sales of certain medical devices effective January 1, 2013. Our products which have received FDA approval fall under the government classification and are subject to the excise tax.

Stock compensation .  All stock-based compensation cost, including grants of stock options, restricted stock units and shares issued under the Company’s employee stock purchase plan, is measured at the grant date based on the fair value of the award and is recognized as an expense on a straight-line basis over the requisite service period, which is generally the vesting period.  The fair value of our stock options is estimated using the Black-Scholes option pricing model. The Black-Scholes valuation calculation requires us to estimate key assumptions such as expected volatility, expected term and risk-free rate of return. Calculation of expected volatility is based on historical volatility. The expected term is calculated using the contractual term of the options as well as an analysis of our historical exercises of stock options.  The estimate of risk-free rate is based on the U.S. Treasury yield curve in effect at the time of grant. We have never paid cash dividends and do not currently intend to pay cash dividends, thus we have assumed a 0% dividend yield.  

The amount of stock-based compensation expense recognized during a period is based on the value of the portion of the awards that are ultimately expected to vest. As part of the requirements of ASC 718, the Company is required to estimate potential forfeitures of stock grants and adjust compensation cost recorded accordingly. The estimate of forfeitures is based on historical forfeiture performance and will be adjusted over the requisite service period to the extent that actual forfeitures differ, or are expected to differ, from such estimates. Changes in estimated forfeitures will be recognized through a cumulative catch-up adjustment in the period of evaluation and will also impact the amount of stock compensation expense to be recognized in future periods. Ultimately, the actual expense recognized over the vesting period will only be for those awards that vest, except for the limited number of market based awards under long term incentive plans.  If we use different assumptions for estimating stock-based compensation expense in future periods or if actual forfeitures differ materially from our estimated forfeitures, the change in our stock-based compensation expense could materially affect our operating income, net income and net income per share.



45


Consolidated Results of Operations

The following table sets forth the percentage of total revenue of certain items in the Consolidated Results of Operations. The financial information and the discussion below should be read in conjunction with the Consolidated Financial Statements and Notes thereto.

 
Year Ended December 31,
 
2014
 
2013
 
2012
Revenue
100
 %
 
100
 %
 
100
 %
Cost of revenue
30
 %
 
33
 %
 
30
 %
Gross profit
70
 %
 
67
 %
 
70
 %
Operating expenses:
 
 
 
 
 
Research and development expense
19
 %
 
21
 %
 
21
 %
Selling, general and administrative expense
36
 %
 
41
 %
 
36
 %
Amortization of acquired intangible assets
2
 %
 
2
 %
 
2
 %
Restructuring
1
 %
 
1
 %
 
 %
Total operating expenses
58
 %
 
65
 %
 
59
 %
Income from operations
12
 %
 
2
 %
 
11
 %
Interest expense from long-term debt
 %
 
 %
 
 %
Other income, net
 %
 
3
 %
 
 %
Income taxes
5
 %
 
(2
)%
 
(5
)%
Net income
17
 %
 
3
 %
 
6
 %



46


Year Ended December 31, 2014 Compared to Year Ended December 31, 2013

 
Year Ended December 31,
 
 
 
 
 
2014
 
2013
 
Variance
 
Variance (%)
 
(dollars in thousands)
Revenue
$
226,983

 
$
213,423

 
$
13,560

 
6
 %
Gross profit
$
159,852

 
$
143,626

 
$
16,226

 
11
 %
Gross margin percentage
70
%
 
67
%
 
3
%
 
N/A

Operating expenses
$
131,715

 
$
138,859

 
$
(7,144
)
 
(5
)%
Operating income
$
28,137

 
$
4,767

 
$
23,370

 
490
 %
Net income
$
39,043

 
$
7,096

 
$
31,947

 
450
 %

Revenue. Total revenue increased to $227.0 million for the year ended December 31, 2014 from $213.4 million in 2013 . The increase was primarily attributable to an increase of $13.6 million in assay revenue and $2.5 million in royalty revenue, partially offset by a decrease of $2.6 million in system revenue.  The increase in assay revenue is attributable to growth in both of our primary assay portfolios; infectious disease assays and genetic testing assays, which grew at 18% and 20%, respectively, over the prior year. The increase in royalty revenue was driven by our partners' continued menu expansion and increased utilization of our partners’ assays on our technology.  System revenue decreased from $31.8 million in 2013 to $29.2 million in 2014 .  We sold 950 multiplexing analyzers in 2014 , which included 372 of our MAGPIX systems, as compared to 1,078 multiplexing analyzers sold in 2013 , which included 495 MAGPIX systems, bringing total multiplexing analyzer shipments since inception to 11,687 as of December 31, 2014 .  Additionally, system revenue generated in our Brisbane, Australia facility, which was closed in 2014, declined by $1.2 million in 2014 from the prior year.

A breakdown of revenue for the years ended December 31, 2014 and 2013 is as follows:

 
Year Ended December 31,
 
 
 
 
 
2014
 
2013
 
Variance
 
Variance (%)
 
(dollars in thousands)
System sales
$
29,200

 
$
31,786

 
$
(2,586
)
 
(8
)%
Consumable sales
48,300

 
48,540

 
(240
)
 
 %
Royalty revenue
39,409

 
36,950

 
2,459

 
7
 %
Assay revenue
87,653

 
74,101

 
13,552

 
18
 %
Service revenue
9,377

 
8,939

 
438

 
5
 %
Other revenue
13,044

 
13,107

 
(63
)
 
 %
 
$
226,983

 
$
213,423

 
$
13,560

 
6
 %

We continue to have revenue concentration in a limited number of customers. In 2014, the top five customers, by revenue, accounted for 55% of total revenue up from 54% of total revenue in 2013 .  In particular, two customers accounted for 38% of 2014 total revenue (21% and 17%, respectively) up from 34% of 2013 total revenue (18% and 16%, respectively). No other customer accounted for more than 10% of total revenue in 2014 or 2013.

Revenue from the sale of systems and peripheral components decreased 8% to $29.2 million for the year ended December 31, 2014 from $31.8 million for the year ended December 31, 2013 , due to the decrease in the total multiplexing analyzer placements. We sold 950 total multiplexing analyzers in 2014 as compared to 1,078 in 2013 .  We anticipate that our increased focus on direct sales will drive the placement of reagent rental multiplexing analyzer systems in lieu of multiplexing analyzer system sales to distributors. For the year ended December 31, 2014 , five of our partners accounted for 721, or 76%, of total multiplexing analyzers sold.  Five of our partners accounted for 895, or 83%, of total multiplexing analyzers sold for the year ended December 31, 2013 .


47


Consumable sales, comprised of microspheres and sheath fluid, decreased to $48.3 million during 2014 from $48.5 million in 2013 .   During the year ended December 31, 2014 , we had 68 bulk purchases of consumables totaling approximately $37.6 million (78% of total consumable revenue), ranging from $0.1 million to $4.8 million, as compared with 74 bulk purchases totaling approximately $38.8 million (80% of total consumable revenue), in the year ended December 31, 2013 .  The decrease in bulk purchases in 2014 is the primary driver to the decrease in consumable revenue from the prior year and is primarily the result of transient inventory challenges experienced by our largest partner, which is expected to affect consumable sales over the next several years.  Partners who reported royalty bearing sales accounted for $38.3 million, or 79%, of consumable sales for the year ended December 31, 2014 compared to $38.4 million, or 79%, of the total consumable sales for the year ended December 31, 2013 .

Royalty revenue, which results when our partners sell products or services incorporating our technology, increased 7% to $39.4 million for the year ended December 31, 2014 from $37.0 million for the year ended December 31, 2013 .  We believe this is primarily the result of menu expansion and increased utilization of our partners’ assays on our technology. Our partners’ end user sales may reflect volatility from quarter to quarter and therefore, that same volatility is reflected in our reported royalty revenues on a quarterly basis.  Total royalty bearing sales on xMAP and MultiCode technology reported to us were $452.6 million and $3.6 million, respectively, for the year ended December 31, 2014 as compared to $443.5 million and $2.9 million, respectively, for the year ended December 31, 2013 .

Assay revenue increased 18% to $87.7 million for the year ended December 31, 2014 from $74.1 million for the year ended December 31, 2013 . The increase in assay revenue is driven primarily by an increase in both of our primary assay portfolios: infectious disease testing and genetic testing assay products which increased 18% and 20% from 2013 , respectively.  Additionally, infectious disease testing and genetic testing assay products represented 67% and 33%, respectively, of total assay revenue in 2014 , consistent with 2013 . Our top customer, by revenue, accounted for 51% of total assay revenue for the year ended December 31, 2014 compared to 49% for the year ended December 31, 2013 . No other customer accounted for more than 10% of total assay revenue during those periods. For the years ended December 31, 2014 and December 31, 2013 , direct assay sales comprised 99% and 97% of total assay sales, respectively. Certain genetic testing assay products revenue from our largest customer is under significant pressure from competing technologies and, although timing is uncertain, a loss of a significant portion of that revenue is expected within the next twelve months.

Service revenue, comprised of extended warranty contracts earned ratably over the term of a contract and time and materials for billable service work not under an extended warranty contract, increased 5% to $9.4 million during 2014 from $8.9 million in 2013 .  This increase is attributable to increased penetration of the expanded installed base. At December 31, 2014 , we had 1,522 Luminex systems covered under extended service agreements and $4.1 million in deferred revenue related to those contracts. At December 31, 2013 , we had 1,516 Luminex systems covered under extended service agreements and $3.8 million in deferred revenue related to those contracts.

Other revenue, which includes training revenue, shipping revenue, miscellaneous part sales, amortized license fees, milestone payments from our development agreement with Merck and revenue from agreements with U.S. government agencies, decreased to $13.0 million for the year ended December 31, 2014 compared to $13.1 million for the year ended December 31, 2013 .

Gross Profit. Gross profit increased to $159.9 million for the year ended December 31, 2014 , as compared to $143.6 million for the year ended December 31, 2013 . Gross margin (gross profit as a percentage of total revenue) was 70% for the year ended December 31, 2014 , up from 67% for the year ended December 31, 2013 .  Gross margin was higher in 2014 primarily as a result of the inclusion in 2013 of $2.6 million of impairment of inventory related to our restructuring plan focused on our Newborn Screening Group and our Brisbane, Australia office. Additionally, concentration of sales in our higher margin items (assays, consumables and royalties) was higher than in the prior year, representing 77% of revenue for the year ended December 31, 2014 compared to 75% for the year ended December 31, 2013 . We anticipate continued fluctuation in gross margin and related gross profit primarily as a result of variability in consumable and system purchases and seasonality effects inherent in our assay revenue.

Research and Development Expense. Research and development expense decreased to $43.1 million , or 19% of total revenue, for the year ended December 31, 2014 from $45.0 million , or 21% of total revenue, for the year ended December 31, 2013 . The decrease in research and development expense was primarily the result of the savings in materials spending associated with advancement in the ARIES development phases, including transitioning from alpha system builds in the prior year to wrapping up development and preparing for clinical trials in the current year, and the savings realized from our restructuring activities in the prior year.  The focus of our research and development activities has been the development and clinical validation of our next generation sample-to-answer platform for our ARIES system.


48


Selling, General and Administrative Expense. Selling, general and administrative expenses, excluding the amortization of acquired intangible assets, decreased to $82.8 million for the year ended December 31, 2014 from $87.3 million for 2013 .  The decrease was primarily attributable to an expense of $7.0 million related to the termination of our molecular diagnostics distribution agreements and our full allowance against all accounts receivable balances related to the bankruptcy of a previous customer totaling $3.9 million each reflected in our 2013 results, partially offset by increased personnel costs due to incremental headcount and increased incentive compensation as well as additional litigation expenditures in 2014. Selling, general and administrative   headcount at December 31, 2014 was 290 as compared to 281 at December 31, 2013 . As a percentage of revenue, selling, general and administrative expense, excluding the amortization of acquired intangible assets, decreased to 36% in 2014 compared to 41% in 2013 .

Restructuring costs. We recorded total pre-tax restructuring charges of $3.1 million in 2014. The portion of these charges that pertained to the non-cash impairment of inventory and certain of the employee separation costs, $1.2 million, was recorded to cost of revenue. The portion of these charges that pertained to the non-cash loss on disposal of our Brisbane, Australia business, the non-cash impairment of intangible assets, fixed assets, certain employee separation costs and facility exit costs, $1.9 million, was recorded to restructuring costs in our operating expenses. We recorded total pre-tax restructuring charges of $5.0 million in 2013. The portion of these charges that pertained to the non-cash impairment of inventory and certain of the employee separation costs, $2.6 million, was recorded to cost of revenue. The portion of these charges that pertained to the non-cash impairment of intangible assets, fixed assets and certain employee separation costs, $2.4 million, was recorded to restructuring costs in our operating expenses. As a result of the organizational change, the Company eliminated approximately 5% of its aggregate workforce.

Other Income, net. Other income, net decreased to a loss of $46,000 for the year ended December 31, 2014 from income of $6.7 million for the year ended December 31, 2013 . The 2013 amount was due to the liquidation of our minority interest in a private company in 2013, which resulted in a gain of $5.4 million and a reduction in the contingent consideration liability established in connection with the 2012 acquisition of GenturaDx from $1.4 million to $0 during 2013.

Income taxes. Our effective tax rate for the year ended December 31, 2014 was a benefit of 39%, or $11.0 million , as compared to an expense of 38%, or $4.3 million , for the year ended December 31, 2013 . The favorable effective tax rate for 2014 reflects an income tax benefit recorded in the fourth quarter resulting from the partial release of the Canadian deferred tax assets valuation allowance, the recognition of benefits in the Netherlands which were generated by the waiver of intercompany debt and restructuring losses related to the Australian entity and the establishment of a tax asset associated with tax paid on intercompany profits. Further release of the Canadian deferred tax assets valuation allowance will be contingent upon future projections of profitability of our Canadian subsidiary.  We will record income tax expense on profits generated in our Canadian subsidiary over the near term and as a result expect our consolidated effective tax rate to be in the 25% to 35% range over the next several years, absent any other significant discrete items. We continue to assess our business model and its impact in various tax jurisdictions.

Year Ended December 31, 2013 Compared to Year Ended December 31, 2012

 
Year Ended December 31,
 
 
 
 
 
2013
 
2012
 
Variance
 
Variance (%)
 
(dollars in thousands)
Revenue
$
213,423

 
$
202,582

 
$
10,841

 
5
 %
Gross profit
$
143,626

 
$
142,574

 
$
1,052

 
1
 %
Gross margin percentage
67
%
 
70
%
 
(3
)%
 
N/A

Operating expenses
$
138,859

 
$
119,858

 
$
19,001

 
16
 %
Operating income
$
4,767

 
$
22,716

 
$
(17,949
)
 
(79
)%
Net income
$
7,096

 
$
12,407

 
$
(5,311
)
 
(43
)%

Revenue. Total revenue increased to  $213.4 million  for the year ended  December 31, 2013  from  $202.6 million  in  2012 . The increase was primarily attributable to a $5.8 million increase in royalty revenue and $3.9 million in other revenue. The increase in royalty revenue was driven by our partners' continued menu expansion and increased utilization of our partners’ assays on our technology.  The increase in other revenue was driven by our contracts with the U.S. government and our development agreement with Merck. In addition, system revenue increased from $31.1 million in 2012 to $31.8 million in 2013.  We sold 1,078 multiplexing analyzers in 2013, which included 495 of our MAGPIX systems, as compared to 981 multiplexing analyzers sold in 2012, which included 420 MAGPIX systems, bringing total multiplexing analyzer sales since inception to 10,737 as of December 31, 2013.  Also included in system revenue for 2013 were sales of 45 automated punching systems compared to 68 in 2012.

49


A breakdown of revenue for the years ended December 31, 2013 and 2012 is as follows:

 
Year Ended December 31,
 
 
 
 
 
2013
 
2012
 
Variance
 
Variance (%)
 
(dollars in thousands)
System sales
$
31,786

 
$
31,083

 
$
703

 
2
 %
Consumable sales
48,540

 
48,012

 
528

 
1
 %
Royalty revenue
36,950

 
31,160

 
5,790

 
19
 %
Assay revenue
74,101

 
75,020

 
(919
)
 
(1
)%
Service revenue
8,939

 
8,079

 
860

 
11
 %
Other revenue
13,107

 
9,228

 
3,879

 
42
 %
 
$
213,423

 
$
202,582

 
$
10,841

 
5
 %

In 2013, the top five customers, by revenue, accounted for 54% of total revenue down from 63% of total revenue in 2012.  In particular, three customers accounted for 43% of 2013 total revenue (18%, 16% and 9%, respectively) down from 51% of 2012 total revenue (19%, 24% and 8% respectively). No other customer accounted for more than 10% of total revenue in 2013.

Revenue from the sale of systems and peripheral components increased 2% to $31.8 million for the year ended December 31, 2013 from $31.1 million for the year ended December 31, 2012, due to the increase in the total multiplexing analyzer placements from 981 in 2012 to 1,078 in 2013.  For the year ended December 31, 2013, five of our partners accounted for 895, or 83%, of total multiplexing analyzers sold.  Five of our partners accounted for 811, or 83%, of total multiplexing analyzers sold for the year ended December 31, 2012.

Consumable sales, comprised of microspheres and sheath fluid, increased 1% to $48.5 million during 2013 from $48.0 million in 2012.  During the year ended December 31, 2013, we had 74 bulk purchases of consumables totaling approximately $38.8 million (80% of total consumable revenue), ranging from $0.1 million to $4.3 million, as compared with 70 bulk purchases totaling approximately $38.1 million (79% of total consumable revenue), in the year ended December 31, 2012.  The increase in bulk purchases was the primary driver to the increase in consumable revenue from the prior year. Partners who reported royalty bearing sales accounted for $38.4 million, or 79%, of total consumable sales for the year ended December 31, 2013.

Royalty revenue, which results when our partners sell products or services incorporating our technology, increased 19% to $37.0 million for the year ended December 31, 2013 from $31.2 million for the year ended December 31, 2012.  We believe this was primarily the result of menu expansion and increased utilization of our partners’ assays on our technology. Our partners’ end user sales may reflect volatility from quarter to quarter and therefore, that same volatility is reflected in our reported royalty revenues on a quarterly basis.  Total royalty bearing sales on xMAP and MultiCode technology reported to us were $443.5 million and $2.9 million, respectively, for the year ended December 31, 2013 as compared to $397.8 million and $4.7 million, respectively, for the year ended December 31, 2012.

Assay revenue decreased 1% to $74.1 million for the year ended December 31, 2013 from $75.0 million for the year ended December 31, 2012. The modest decline in assay revenue was driven primarily by decreased infectious disease assay sales.  Infectious disease testing and genetic testing assays represented 67% and 33%, respectively, of total assay revenue in both 2013 and 2012. For the year ended December 31, 2013, direct assay sales comprised 97% of total assay sales compared to 72% for the year ended December 31, 2012.  In 2013, we focused more resources on our direct sales channels which resulted in less reliance on our distributors. The top customer, by revenue, accounted for 49% of total assay revenue in both 2013 and 2012. No other customer accounted for more than 10% of total assay revenue in 2013. In 2012, before our focus on selling directly to the end user, the second and third largest customers represented 18% and 9%, respectively of total assay revenue.

Service revenue, comprised of extended warranty contracts earned ratably over the term of a contract, increased 11% to $8.9 million during 2013 from $8.1 million in 2012.  This increase was attributable to increased penetration of the expanded installed base. At December 31, 2013, we had 1,516 Luminex systems covered under extended service agreements and $3.8 million in deferred revenue related to those contracts. At December 31, 2012, we had 1,379 Luminex systems covered under extended service agreements and $3.3 million in deferred revenue related to those contracts.


50


Other revenue, which includes training revenue, shipping revenue, miscellaneous part sales, amortized license fees, milestone payments from our development agreement with Merck and revenue from agreements with U.S. government agencies, increased 42% to $13.1 million for the year ended December 31, 2013 compared to $9.2 million for the year ended December 31, 2012.  This increase was primarily the result of payments related to minimum purchase obligations and our development agreements with Merck and U.S. government agencies.

Gross Profit. Gross profit increased to $143.6 million for the year ended December 31, 2013, as compared to $142.6 million for the year ended December 31, 2012. Gross margin (gross profit as a percentage of total revenue) was 67% for the year ended December 31, 2013, down from 70% for the year ended December 31, 2012.  Gross margin was lower in 2013 primarily as a result of the inclusion of $2.6 million of impairment of inventory related to our restructuring plan focused on our Newborn Screening Group and our Brisbane, Australia office. Additionally, concentration of sales in our higher margin items (assays, consumables and royalties) was modestly lower than in the prior year, representing 75% of revenue for the year ended December 31, 2013 compared to 76% for the year ended December 31, 2012.

Research and Development Expense. Research and development expense increased to $45.0 million for the year ended December 31, 2013 from $43.0 million for the year ended December 31, 2012, but remained flat as a percentage of revenue, at 21% in both 2013 and 2012.  The increase in expense was primarily associated with (i) the development of a new version of our multiplex PCR technology and (ii) our sample-to-answer instrumentation and assays.

Selling, General and Administrative Expense. Selling, general and administrative expenses, excluding the amortization of acquired intangible assets, increased to $87.3 million for the year ended December 31, 2013 from $72.6 million for 2012.  The increase was primarily attributable to an expense of $7.0 million related to the termination of our molecular diagnostics distribution agreements effective as of the first quarter of 2013, an increase of our allowance for bad debts of $3.9 million related to all of the receivables from a previous customer that filed for Chapter 11 bankruptcy and additional infrastructure and personnel and related expenses focused on our direct sales channels. Selling, general and administrative   headcount at December 31, 2013 was 281 as compared to 259 at December 31, 2012. As a percentage of revenue, selling, general and administrative expense, excluding the amortization of acquired intangible assets, increased to 41% in 2013 compared to 36% in 2012.

Restructuring costs. We recorded total pre-tax restructuring charges of $5.0 million in 2013. The portion of these charges that pertained to the non-cash impairment of inventory and certain of the employee separation costs, $2.6 million, was recorded to cost of revenue. The portion of these charges that pertained to the non-cash impairment of intangible assets, fixed assets and certain employee separation costs, $2.4 million, was recorded to restructuring costs in our operating expenses. As a result of the organizational change, the Company eliminated approximately 5% of its workforce.

Other Income, net. Other income, net increased to $6.7 million for the year ended December 31, 2013 from $0.3 million for the year ended December 31, 2012 due to the liquidation of our minority interest in a private company, which resulted in a gain of $5.4 million and a reduction in the contingent consideration liability established in connection with the 2012 acquisition of GenturaDx from $1.4 million to $0 during 2013.

Income taxes. Income tax expense decreased to $4.3 million for the year ended December 31, 2013 from $10.4 million for the year ended December 31, 2012 primarily due to decreased profitability in the U.S. during 2013.  Our effective tax rate for the year ended December 31, 2013 was 38% compared to 46% for the year ended December 31, 2012.  The decrease in our effective tax rate in 2013 was primarily a function of the decrease in the proportion of taxable income attributable to the U.S., an extension of the U.S. federal research and experimentation tax credit in 2013, and an increase in the taxable losses in our foreign jurisdictions for which no income tax benefit is recognized.  Our foreign earnings are generally taxed at lower rates than in the United States.

51


Liquidity and Capital Resources
 
December 31, 2014
 
December 31, 2013
 
(in thousands)
Cash and cash equivalents
$
91,694

 
$
67,924

Short-term investments

 
4,517

Long-term investments
15,975

 

 
$
107,669

 
$
72,441


At December 31, 2014 , we held cash, cash equivalents and long-term investments of $107.7 million and had working capital of $146.7 million . At December 31, 2013 , we held cash, cash equivalents and short-term investments of $72.4 million and had working capital of $117.9 million .  Cash, cash equivalents and investments increased by $35.2 million during the year ended December 31, 2014 .  The increase in cash, cash equivalents and investments from the prior year is primarily attributable to significant operating cash flows, coupled with $4.7 million in proceeds from the Company's employee stock purchase plan and stock option exercises, which funded our capital expenditures of $17.1 million .

We have funded our operations to date primarily through the issuance of equity securities (in conjunction with an initial public offering in 2000, subsequent option exercises, and our follow-on public offering in 2008) and cash generated from operations.  Our cash reserves are held directly or indirectly in a variety of short-term, interest-bearing instruments, including non-government sponsored debt securities.   We do not have any investments in asset-backed commercial paper, auction rate securities, or mortgage backed or sub-prime style investments.

Cash provided by operations was $49.3 million for the year ended December 31, 2014 as compared with cash provided by operations of $26.9 million for the year ended December 31, 2013 .  Cash used in investing activities was $28.5 million for the year ended December 31, 2014 as compared with cash provided by investing activities of $2.7 million for 2013 .  The change in cash flows of investing activities was primarily attributable to the $9.5 million in proceeds received from the sale of our minority interest investment in a private company in the prior year and a decrease in the net sales of our available-for-sale securities of $14.6 million. Currently, exclusive of changes in available-for-sale securities, we expect cash used in investing activities to be primarily for purchases of property and equipment, additional cost-method investments and continued strategic investments or acquisitions.

Cash provided by financing activities increased to $3.4 million for the year ended December 31, 2014 , from cash used in financing activities of $4.4 million for the year ended December 31, 2013 , primarily attributable to a decrease in stock repurchases of $14.6 million, partially offset by decreases of $3.9 million in proceeds from the Company's employee stock purchase plan and stock option exercises and of $2.3 million in excess income tax benefit from employee stock-based awards of in 2014 as compared to 2013.

Our future capital requirements will depend on a number of factors, including our success in developing and expanding markets for our products, payments under possible future strategic arrangements, continued progress of our research and development of potential products, the timing and outcome of regulatory approvals, the need to acquire licenses to new technology, costs associated with strategic acquisitions including integration costs and assumed liabilities, the status of competitive products, loss of a significant portion of our revenue stream, and potential costs associated with both protecting and defending our intellectual property. Additionally, actions taken as a result of the appointment of our new CEO and his ongoing internal evaluation of our business could result in expenditures not currently contemplated in our estimates for 2015

During 2015, we expect a contraction of approximately $10 million in consumable sales as the result of transient inventory challenges that our largest bulk purchasing partner is experiencing. We expect this lower level of purchasing to continue over the next several years. Additionally, certain genetic testing assay products revenue from our largest customer is under significant pressure from competing technologies and, although timing is uncertain, a loss of a significant portion of that revenue is expected within the next twelve months.


52


One of the short term significant capital requirements is the completion of our current in-process research and development project related to our acquisition of GenturaDx, the foundation of our ARIES System, which is scheduled to be completed with initial commercialization in 2015.  The estimated aggregate cost to complete this project is between $2.0 million and $4.0 million . We believe, however, that our existing cash and cash equivalents are sufficient to fund our operating expenses, capital equipment requirements and other expected ordinary course liquidity requirements for the coming twelve months.  Factors that could affect our capital requirements, in addition to those listed above include: (i) continued collections of accounts receivable consistent with our historical experience, (ii) our ability to manage our inventory levels consistent with past practices, (iii) signing partnership agreements which include significant up front license fees, (iv) our stock repurchase program from time to time and (v) entering into strategic investment or acquisition agreements requiring significant cash consideration.  See also the “Safe Harbor Cautionary Statement” and Item 1A “Risk Factors” above.
 
To the extent our capital resources are insufficient to meet future capital requirements we will have to raise additional funds to continue the development and deployment of our technologies, or to supplement our position through strategic acquisitions. There can be no assurance that debt or equity funds will be available on favorable terms, if at all.  Any downgrade in our credit rating could adversely affect our ability to raise debt capital on favorable terms, or at all.   To the extent that additional capital is raised through the sale of equity or convertible debt securities, the issuance of those securities could result in dilution to our stockholders. Moreover, incurring debt financing could result in a substantial portion of our operating cash flow being dedicated to the payment of principal and interest on such indebtedness, could render us more vulnerable to competitive pressures and economic downturns and could impose restrictions on our operations. If adequate funds are not available, we may be required to curtail operations significantly or to obtain funds through entering into agreements on unattractive terms.

Debt

In May 2014, the Company repaid all of its outstanding debt. See Note 14 to the Consolidated Financial Statements for a discussion on long-term debt.  

Contractual Obligations

As of December 31, 2014 , we had approximately $24.2 million in non-cancellable obligations for the next 12 months.  These obligations are included in our estimated cash usage during 2015 .  The following table reflects our total current non-cancellable obligations by period as of December 31, 2014 (in thousands):
 
 
 
Payment Due By Period
Contractual Obligations
 
Total
 
Less Than 1 Year
 
1-3 Years
 
3-5 Years
 
More Than 5 Years
Non-cancellable rental obligations
 
$
24,452

 
$
4,283

 
$
8,122

 
$
7,137

 
$
4,910

Non-cancellable purchase obligations (1)
 
20,087

 
18,678

 
559

 
450

 
400

Capital lease obligations
 
1,015

 
327

 
426

 
262

 

Minimum royalty commitments (2)
 
207

 
25

 
40

 
29

 
113

Consulting Agreement with Patrick J. Balthrop, Sr.
 
233

 
233

 

 

 

Insurance premiums
 
636

 
636

 

 

 

Total (3)
 
$
46,630

 
$
24,182

 
$
9,147

 
$
7,878

 
$
5,423


(1)
Purchase obligations predominantly relate to contractual arrangements in the form of purchase orders primarily as a result of normal inventory purchases or minimum payments due resulting when minimum purchase commitments are not met as well as other operating commitments.

(2)
Amounts represent minimum royalties due on net sales of products incorporating licensed technology and subject to a minimum annual royalty payment.

(3)
Due to the uncertainty with respect to the timing of future cash flows associated with Luminex’s unrecognized tax benefits at December 31, 2014 , Luminex is unable to make reasonably reliable estimates of the timing of cash settlement with the respective taxing authority. Therefore, $2.3 million of unrecognized tax benefits have been excluded from the contractual obligations table above.  See Note 13 to the Consolidated Financial Statements for a discussion on income taxes.  


53


Inflation

We do not believe that inflation has had a direct adverse effect on our operations to date.  However, a substantial increase in product and manufacturing costs and personnel related expenses could have an adverse impact on our results of operations in the event these expenses increase at a faster pace than we can increase our system, consumable and royalty revenue rates.

Recently Adopted Accounting Pronouncements

In April 2014, the FASB amended guidance to clarify the accounting for disposals of groups of assets and business units. The amendments alter the definition of a discontinued operation to cover only asset disposals that are a strategic shift with a major effect on an entity's operations and finances. For the Company, the changes should be applied in fiscal years that start on December 15, 2014, or later, but the changes can be applied ahead of the effective date for asset disposals that have not been reported in a set of financial statements. Management applied this new guidance for the automated punching group and the related closure of the Brisbane, Australia manufacturing facility in the third quarter of 2014.

Recent Accounting Pronouncements

In May 2014, the FASB issued a new standard on revenue recognition which outlines a single comprehensive model to use in accounting for revenue arising from contracts with customers and supersedes most current revenue recognition guidance, including industry-specific guidance. The core principle of the revenue model is that an entity should recognize revenue to depict the transfer of promised goods or services to customers in an amount that reflects the consideration to which the entity expects to be entitled in exchange for those goods or services. The standard is designed to create greater comparability for financial statement users across industries and jurisdictions and also requires enhanced disclosures. The guidance is effective for fiscal years, and interim periods within those years, beginning after December 15, 2016. Early adoption is not permitted. We are currently evaluating the impact of the adoption of this standard on our consolidated financial statements.

ITEM 7A.  QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK

Interest Rate Risk.   Our interest income is sensitive to changes in the general level of domestic interest rates, particularly since our investments are in long-term instruments available-for-sale. A 50 basis point fluctuation from average investment returns at December 31, 2014 would yield a less than 0.5% variance in overall investment return, which would not have a material adverse effect on our financial condition.

Foreign Currency Risk. Our international business is subject to risks, including, but not limited to: foreign exchange rate volatility, differing tax structures, unique economic conditions, other regulations and restrictions, and changes in political climate.  Accordingly, our future results could be materially adversely impacted by changes in these and other factors.

As of December 31, 2014 , as a result of our foreign operations, we have costs, assets and liabilities that are denominated in foreign currencies, primarily Canadian dollars and to a lesser extent the Euro, Renminbi, and Yen. For example, some fixed asset purchases and certain expenses are denominated in Canadian dollars while sales of products are primarily denominated in U.S. dollars.  All transactions in our Netherlands and Japanese subsidiaries are denominated in Euros and Yen, respectively. All transactions, with the exception of our initial capital investment, in our Chinese subsidiary are denominated in Renminbi.  As a consequence, movements in exchange rates could cause our foreign currency denominated expenses to fluctuate as a percentage of net revenue, affecting our profitability and cash flows. A significant majority of our revenues are denominated in U.S. dollars. The impact of foreign exchange on foreign denominated balances will vary in relation to changes between the U.S. dollar, Canadian dollar, Euro, Yen, and Renminbi exchange rates. A 10% change in these exchange rates in relation to the U.S. dollar would result in an income statement impact of approximately $496,000 on foreign currency denominated asset and liability balances as of December 31, 2014 . As a result of our efforts to expand globally, in the future we will be exposed to additional foreign currency risk in multiple currencies; however, at this time, our exposure to foreign currency fluctuations is not currently material. We regularly assess the market to determine if additional strategies are appropriate to mitigate future risks.

In addition, the indirect effect of fluctuations in interest rates and foreign currency exchange rates could have a material adverse effect on our business financial condition and results of operations. For example, currency exchange rate fluctuations could affect international demand for our products. In addition, interest rate fluctuations could affect our customers’ buying patterns. Furthermore, interest rate and currency exchange rate fluctuations may broadly influence the United States and foreign economies resulting in a material adverse effect on our business, financial condition and results of operations.  As a result, we cannot give any assurance as to the effect that future changes in foreign currency rates will have on our consolidated financial position, results of operations or cash flows.  Our aggregate foreign currency transaction loss of $16,000 was included in determining our consolidated results for the year ended December 31, 2014 .

54


ITEM 8.   FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA

Index to Consolidated Financial Statements

 
PAGE
 
 
Report of Independent Registered Public Accounting Firm
 
 
Report of Independent Registered Public Accounting Firm
 
 
Consolidated Balance Sheets
 
 
Consolidated Statements of Comprehensive Income
 
 
Consolidated Statements of Cash Flows
 
 
Consolidated Statements of Changes in Stockholders’ Equity
 
 
Notes to Consolidated Financial Statements


55


REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM


The Board of Directors and Stockholders of
Luminex Corporation

We have audited Luminex Corporation’s internal control over financial reporting as of December 31, 2014, based on criteria established in Internal Control-Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (1992 framework) (the COSO criteria). Luminex Corporation’s management is responsible for maintaining effective internal control over financial reporting, and for its assessment of the effectiveness of internal control over financial reporting included in the accompanying Management’s Report on Internal Control over Financial Reporting. Our responsibility is to express an opinion on the company’s internal control over financial reporting based on our audit.

We conducted our audit in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether effective internal control over financial reporting was maintained in all material respects. Our audit included obtaining an understanding of internal control over financial reporting, assessing the risk that a material weakness exists, testing and evaluating the design and operating effectiveness of internal control based on the assessed risk, and performing such other procedures as we considered necessary in the circumstances. We believe that our audit provides a reasonable basis for our opinion.

A company’s internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles. A company’s internal control over financial reporting includes those policies and procedures that (1) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the company; (2) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that receipts and expenditures of the company are being made only in accordance with authorizations of management and directors of the company; and (3) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use, or disposition of the company’s assets that could have a material effect on the financial statements.

Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.

In our opinion, Luminex Corporation maintained, in all material respects, effective internal control over financial reporting as of December 31, 2014, based on the COSO criteria.

We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States), the consolidated balance sheets of Luminex Corporation as of December 31, 2014 and 2013, and the related consolidated statements of comprehensive income, shareholders’ equity and cash flows for each of the three years in the period ended December 31, 2014 of Luminex Corporation and our report dated February 25, 2015 expressed an unqualified opinion thereon.

/s/ Ernst & Young LLP
Austin, Texas
February 25, 2015





56


REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
 

The Board of Directors and Stockholders of
Luminex Corporation

We have audited the accompanying consolidated balance sheets of Luminex Corporation (the Company) as of December 31, 2014 and 2013, and the related consolidated statements of comprehensive income, shareholders' equity and cash flows for each of the three years in the period ended December 31, 2014. These financial statements are the responsibility of the Company's management. Our responsibility is to express an opinion on these financial statements based on our audits.
We conducted our audits in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly, in all material respects, the consolidated financial position of Luminex Corporation at December 31, 2014 and 2013, and the consolidated results of its operations and its cash flows for each of the three years in the period ended December 31, 2014, in conformity with U.S. generally accepted accounting principles.
We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States), Luminex Corporation’s internal control over financial reporting as of December 31, 2014, based on criteria established in Internal Control-Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (1992 framework) and our report dated February 25, 2015 expressed an unqualified opinion thereon.

/s/ Ernst & Young LLP
Austin, Texas
February 25, 2015
    





57



 
LUMINEX CORPORATION
CONSOLIDATED BALANCE SHEETS
(In thousands, except share and per share data)
 
 
 
 
As of December 31,
 
 
2014
 
2013
 
ASSETS
 
 
 
 
Current assets:
 
 
 
 
Cash and cash equivalents
$
91,694

 
$
67,924

 
Short-term investments

 
4,517

 
Accounts receivable (net of allowance for doubtful accounts of $4,357 and $4,579 at December 31, 2014 and 2013, respectively)
29,095

 
30,948

 
Inventories, net
36,616

 
30,487

 
Deferred income taxes
12,203

 
7,265

 
Prepaids and other
7,412

 
5,229

 
Total current assets
177,020

 
146,370

 
Property and equipment, net
39,945

 
32,793

 
Intangible assets, net
56,382

 
60,295

 
Deferred income taxes
15,400

 
11,913

 
Long-term investments
15,975

 

 
Goodwill
49,619

 
50,738

 
Other
3,185

 
3,937

 
Total assets
$
357,526

 
$
306,046

 
LIABILITIES AND STOCKHOLDERS' EQUITY
 

 
 

 
Current liabilities:
 

 
 

 
Accounts payable
$
11,841

 
$
10,698

 
Accrued liabilities
14,118

 
11,624

 
Deferred revenue
4,407

 
4,980

 
Current portion of long-term debt

 
1,194

 
Total current liabilities
30,366

 
28,496

 
Long-term debt

 
463

 
Deferred revenue
2,297

 
2,482

 
Other
4,869

 
4,985

 
Total liabilities
37,532

 
36,426

 
Stockholders' equity:
 

 
 

 
Common stock, $.001 par value, 200,000,000 shares authorized; issued and outstanding: 41,805,962 shares at December 31, 2014; 41,133,653 shares at December 31, 2013
42

 
41

 
Preferred stock, $.001 par value, 5,000,000 shares authorized; no shares issued and outstanding

 

 
Additional paid-in capital
309,424

 
296,931

 
Accumulated other comprehensive (loss) income
(744
)
 
419

 
Retained earnings (accumulated deficit)
11,272

 
(27,771
)
 
Total stockholders' equity
319,994

 
269,620

 
Total liabilities and stockholders' equity
$
357,526

 
$
306,046


See the accompanying notes which are an integral part of these Consolidated Financial Statements.



58


 
LUMINEX CORPORATION
CONSOLIDATED STATEMENTS OF COMPREHENSIVE INCOME
(In thousands, except per share data)
 
 
 
 
Year Ended December 31,
 
 
2014
 
2013
 
2012
 
Revenue
$
226,983

 
$
213,423

 
$
202,582

 
Cost of revenue
67,131

 
69,797

 
60,008

 
Gross profit
159,852

 
143,626

 
142,574

 
Operating expenses:
 

 
 

 
 

 
Research and development
43,135

 
45,041

 
42,989

 
Selling, general and administrative
82,785

 
87,301

 
72,626

 
Amortization of acquired intangible assets
3,913

 
4,099

 
4,243

 
Restructuring costs
1,882

 
2,418

 

 
Total operating expenses
131,715

 
138,859

 
119,858

 
Income from operations
28,137

 
4,767

 
22,716

 
Interest expense on long-term debt
(6
)
 
(76
)
 
(198
)
 
Other income (expense), net
(46
)
 
6,733

 
262

 
Income before income taxes
28,085

 
11,424

 
22,780

 
Income tax benefit (expense)
10,958

 
(4,328
)
 
(10,373
)
 
Net income
$
39,043

 
$
7,096

 
$
12,407

 
Other comprehensive (loss) income:
 
 
 
 
 
 
Foreign currency translation adjustments
(1,146
)
 
(681
)
 
144

 
Unrealized losses on available-for-sale securities, net of tax
(17
)
 
(1
)
 
(27
)
 
Other comprehensive (loss) income
(1,163
)
 
(682
)
 
117

 
Comprehensive income
$
37,880

 
$
6,414

 
$
12,524

 
Net income per share, basic
$
0.94

 
$
0.17

 
$
0.30

 
Shares used in computing net income per share, basic
41,558

 
40,799

 
40,927

 
Net income per share, diluted
$
0.93

 
$
0.17

 
$
0.30

 
Shares used in computing net income per share, diluted
42,156

 
41,986

 
41,884


See the accompanying notes which are an integral part of these Consolidated Financial Statements.


59


 
LUMINEX CORPORATION
CONSOLIDATED STATEMENTS OF CASH FLOWS
(In thousands)
 
 
 
 
Year Ended December 31,
 
 
2014
 
2013
 
2012
 
Cash flows from operating activities:
 
 
 
 
 
 
Net income
$
39,043

 
$
7,096

 
$
12,407

 
Adjustments to reconcile net income to net cash provided by operating activities:
 

 
 

 
 

 
Depreciation and amortization
14,205

 
15,922

 
14,364

 
Stock-based compensation
9,548

 
9,221

 
9,915

 
Deferred income tax (benefit) expense
(8,549
)
 
551

 
2,699

 
Excess income tax benefit from employee stock-based awards
(287
)
 
(2,569
)
 
(6,457
)
 
Loss (gain) on sale of assets
181

 
(5,173
)
 

 
Non-cash restructuring charges
2,836

 
4,137

 

 
Other
(347
)
 
(1,209
)
 
1,157

 
Changes in operating assets and liabilities:
 

 
 

 
 

 
Accounts receivable, net
1,964

 
2,346

 
(10,267
)
 
Inventories, net
(7,046
)
 
(3,005
)
 
(5,346
)
 
Other assets
(2,888
)
 
(1,470
)
 
(617
)
 
Accounts payable
841

 
962

 
3,286

 
Accrued liabilities
564

 
(324
)
 
3,463

 
Deferred revenue
(814
)
 
417

 
(321
)
 
Net cash provided by operating activities
49,251

 
26,902

 
24,283

 
Cash flows from investing activities:
 

 
 

 
 

 
Purchases of available-for-sale securities
(18,999
)
 
(10,005
)
 
(14,987
)
 
Sales and maturities of available-for-sale securities
7,509

 
22,128

 
47,117

 
Purchases of property and equipment
(17,078
)
 
(18,088
)
 
(9,767
)
 
Business acquisition consideration, net of cash acquired

 

 
(48,199
)
 
Purchase of cost-method investment

 

 
(1,000
)
 
Proceeds from sale of assets and investments
98

 
9,598

 

 
Acquired technology rights
(64
)
 
(930
)
 
(1,592
)
 
Net cash (used in) provided by investing activities
(28,534
)
 
2,703

 
(28,428
)
 
Cash flows from financing activities:
 

 
 

 
 

 
Payments on debt
(1,621
)
 
(1,105
)
 
(1,025
)
 
Proceeds from employee stock plans and issuance of common stock
4,746

 
8,677

 
4,022

 
Payments for stock repurchases

 
(14,556
)
 
(20,916
)
 
Excess income tax benefit from employee stock-based awards
287

 
2,569

 
6,457

 
Net cash provided by (used in) financing activities
3,412

 
(4,415
)
 
(11,462
)
 
Effect of foreign currency exchange rate on cash
(359
)
 
(55
)
 
114

 
Change in cash and cash equivalents
23,770

 
25,135

 
(15,493
)
 
Cash and cash equivalents, beginning of year
67,924

 
42,789

 
58,282

 
Cash and cash equivalents, end of year
$
91,694

 
$
67,924

 
$
42,789


See the accompanying notes which are an integral part of these Consolidated Financial Statements.

60


 
LUMINEX CORPORATION
CONSOLIDATED STATEMENTS OF CHANGES IN STOCKHOLDERS’ EQUITY
(In thousands, except share data)
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Common Stock
 
 
 
 
 
 
 
 
 
 
Number of Shares
 
Amount
 
Additional Paid-In Capital
 
Accumulated Other Comprehensive Income (Loss)
 
Retained Earnings (Accumulated Deficit)
 
Total Stockholders' Equity
 
Balance at December 31, 2011
40,968,957

 
$
41

 
$
297,104

 
$
984

 
$
(47,274
)
 
$
250,855

 
Exercise of stock options
486,766

 
1

 
3,516

 

 

 
3,517

 
Issuances of restricted stock, net of shares withheld for taxes
340,216

 

 
(3,189
)
 

 

 
(3,189
)
 
Stock compensation

 

 
9,915

 

 

 
9,915

 
Repurchase and retirement of common stock
(1,006,303
)
 
(1
)
 
(20,915
)
 

 

 
(20,916
)
 
Issuance of common shares under ESPP
35,296

 

 
504

 

 

 
504

 
Net income

 

 

 

 
12,407

 
12,407

 
Tax benefits associated with options

 

 
6,457

 

 

 
6,457

 
Foreign currency translation adjustments

 

 

 
144

 

 
144

 
Other

 

 

 
(27
)
 

 
(27
)
 
Balance at December 31, 2012
40,824,932

 
$
41

 
$
293,392

 
$
1,101

 
$
(34,867
)
 
$
259,667

 
Exercise of stock options
834,581

 
1

 
7,561

 

 

 
7,562

 
Issuances of restricted stock, net of shares withheld for taxes
264,555

 

 
(2,352
)
 

 

 
(2,352
)
 
Stock compensation

 

 
9,214

 

 

 
9,214

 
Repurchase and retirement of common stock
(852,483
)
 
(1
)
 
(14,555
)
 

 

 
(14,556
)
 
Issuance of common shares under ESPP
71,226

 

 
1,102

 

 

 
1,102

 
Net income

 

 

 

 
7,096

 
7,096

 
Tax benefits associated with options

 

 
2,569

 

 

 
2,569

 
Foreign currency translation adjustments

 

 

 
(681
)
 

 
(681
)
 
Other
(9,158
)
 

 

 
(1
)
 

 
(1
)
 
Balance at December 31, 2013
41,133,653

 
$
41

 
$
296,931

 
$
419

 
$
(27,771
)
 
$
269,620

 
Exercise of stock options
346,053

 
1

 
3,645

 

 

 
3,646

 
Issuances of restricted stock, net of shares withheld for taxes
251,377

 

 
(2,093
)
 

 

 
(2,093
)
 
Stock compensation

 

 
9,544

 

 

 
9,544

 
Issuance of common shares under ESPP
74,879

 

 
1,110

 

 

 
1,110

 
Net income

 

 

 

 
39,043

 
39,043

 
Tax benefits associated with options

 

 
287

 

 

 
287

 
Foreign currency translation adjustments

 

 

 
(1,146
)
 

 
(1,146
)
 
Other

 

 

 
(17
)
 

 
(17
)
 
Balance at December 31, 2014
41,805,962

 
$
42

 
$
309,424

 
$
(744
)
 
$
11,272

 
$
319,994


  See the accompanying notes which are an integral part of these Consolidated Financial Statements.

61


LUMINEX CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS


NOTE 1 - DESCRIPTION OF BUSINESS AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES

Description of Business

Luminex Corporation, the “Company” or “Luminex,” develops, manufactures and sells proprietary biological testing technologies and products with applications throughout the life sciences and diagnostics industries.  The Company’s xMAP technology, an open architecture, multiplexing technology, allows the Luminex systems to simultaneously perform up to 500 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, LEDs, digital signal processors and proprietary software to create a system offering advantages in speed, precision, flexibility and cost. The Company’s xMAP technology is currently being used within various segments of the life sciences industry which includes the fields of drug discovery and development, and for clinical diagnostics, genetic analysis, bio-defense, food safety and biomedical research.  In addition to the Company's xMAP technology, its other offerings include its proprietary MultiCode technology, used for real-time PCR and multiplexed PCR assays.

Principles of Consolidation

The consolidated financial statements include the accounts of the Company and its wholly owned subsidiaries. All significant intercompany transactions and balances have been eliminated upon consolidation.
 
The acquisition of GenturaDx was completed on July 11, 2012; therefore the results of operations of GenturaDx in the Company’s consolidated financial statements only include GenturaDx’s results since that date.

Use of Estimates

The preparation of financial statements in conformity with U.S. GAAP requires management to make estimates and assumptions that affect the amounts reported in the financial statements and accompanying notes. Actual amounts and results could differ from those estimates, and such differences could be material to the financial statements.

Cash and Cash Equivalents

Cash and cash equivalents consist of cash deposits and highly liquid investments with original maturities of three months or less when purchased.

Investments

The Company determines the appropriate classification of its investments in debt and equity securities at the time of purchase and reevaluates such determinations at each balance sheet date.  Marketable securities that are bought and held principally for the purpose of selling them in the near term are classified as trading securities and are reported at fair value, with unrealized gains and losses recognized in earnings.  Debt securities are classified as held-to-maturity when the Company has the positive intent and ability to hold the securities to maturity. Held-to-maturity securities are stated at amortized cost, which approximates fair value of these investments.   Debt securities for which the Company does not have the intent or ability to hold to maturity are classified as available-for-sale. Debt and marketable equity securities not classified as held-to-maturity or as trading are classified as available-for-sale, and are carried at fair market value, with the unrealized gains and losses included in the determination of comprehensive income and reported in stockholders’ equity.  Marketable securities are recorded as either short-term or long-term on the balance sheet based on contractual maturity date.  The fair value of all securities is determined by obtaining non-binding market prices from the Company's third-party portfolio managers on the last day of the quarter, whose sources may use quoted prices in active markets for identical assets or inputs other than quoted prices that are observable either directly or indirectly in determining fair value.  Declines in fair value below the Company’s carrying value deemed to be other than temporary are charged against net earnings.

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Fair Value of Financial Instruments

The fair values of financial instruments are determined by obtaining non-binding market prices from its third-party portfolio managers on the last day of the quarter, whose sources may use quoted prices in active markets for identical assets or inputs other than quoted prices that are observable either directly or indirectly in determining fair value. The Company’s financial instruments include cash and cash equivalents, short-term investments, accounts receivable, cost-method investments, long-term investments, accounts payable and accrued liabilities.  The fair values of these financial instruments were not materially different from their carrying or contract values at December 31, 2014 and 2013 . See Note 7 for further details concerning fair value measurements.

Supplemental Cash Flow Statement Information (in thousands)

 
Year Ended December 31,
 
2014
 
2013
 
2012
Cash paid during the period for taxes
$
1,193

 
$
1,284

 
$
761

Cash paid during the period for interest and penalties
157

 
124

 
171

Effect of acquisitions:
 

 
 

 
 

Fair value of tangible assets acquired
$

 
$

 
$
1,682

Liabilities assumed

 

 
(1,954
)
Cost in excess of fair value of assets acquired

 

 
8,292

Deferred tax assets, net

 

 
2,526

In-process research and development

 

 
40,100

 

 

 
50,646

Less accrued contingent consideration

 

 
1,370

Less cash and cash equivalents acquired

 

 
1,077

Net cash paid for business acquisition
$

 
$

 
$
48,199


Concentration of Credit Risk

Financial instruments which potentially subject the Company to concentrations of credit risk consist of short-term and long-term investments and trade receivables. The Company’s short-term investments consist of investments in high credit quality financial institutions, non-government sponsored debt securities and corporate issuers.

The Company provides credit, in the normal course of business, to a number of its customers geographically dispersed primarily throughout the U.S. The Company attempts to limit its credit risk by performing ongoing credit evaluations of its customers and maintaining adequate allowances for potential credit losses and does not require collateral.

Laboratory Corporation of America (LabCorp) accounted for 21% , 18% and 19% of our total revenues in 2014 , 2013 and 2012 , respectively.  Thermo Fisher Scientific, Inc. accounted for 17% , 17% and 24% of our total revenues in 2014 , 2013 and 2012 , respectively.  Bio-Rad Laboratories, Inc. accounted for 7% , 9% and 8% of our total revenues in 2014 , 2013 and 2012 , respectively.  No other customer accounted for more than 10% of our total revenues in 2014 , 2013 or 2012 .


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Inventories

Inventories, consisting primarily of raw materials and purchased components, are stated at the lower of cost or market, with cost determined according to the standard cost method, which approximates the first-in, first-out method. As a developer and manufacturer of high technology medical equipment, the Company may be exposed to a number of economic and industry factors that could result in portions of inventory becoming either obsolete or in excess of anticipated usage. These factors include, but are not limited to, technological changes in the Company's markets, ability to meet changing customer requirements, competitive pressures on products and prices, and reliability and replacement of and the availability of key components from suppliers. The Company's policy is to establish inventory reserves when conditions exist that suggest that inventory may be in excess of anticipated demand or is obsolete based upon the Company's assumptions about future demand for products and market conditions. The Company regularly evaluates the ability to realize the value of inventory based on a combination of factors including the following: historical usage rates, forecasted sales or usage, product expiration or end of life dates, estimated current and future market values and new product introductions. Assumptions used in determining the Company's estimates of future product demand may prove to be incorrect, in which case the provision required for excess and obsolete inventory would have to be adjusted. If inventory is determined to be overvalued, excess or obsolete, the Company would be required to record impairment charges within cost of goods sold at the time of such determination. Although considerable effort is made to ensure the accuracy of forecasts of future product demand, any significant unanticipated changes in demand or expected usage could have a significant negative impact on the value of inventory and the Company's operating results. When recorded, reserves are intended to reduce the carrying value of inventory to its net realizable value.

Property and Equipment

Property and equipment are carried at cost less accumulated amounts for amortization and depreciation. Property and equipment are typically amortized or depreciated on a straight-line basis over the useful lives of the assets, which range from two to seven years. Leasehold improvements and equipment under capital leases are amortized on a straight-line basis over the shorter of the remaining term of the lease or the estimated useful life of the improvements and equipment.  The Company classifies the carrying value of Luminex xMAP Instruments placed within the reagent rental program and the instruments on loan to customers in property and equipment as "Assets on loan/rental."

Goodwill and Other Intangible Assets

Goodwill represents the excess of the cost over the fair value of the assets of the acquired business.  In accordance with Accounting Standards Codification (ASC) 350 “Goodwill and Other” (ASC 350), goodwill is reviewed for impairment at least annually at the beginning of the fourth quarter, or more frequently if impairment indicators arise, on a reporting unit level.  As of October 1, 2014, all of the Company's goodwill related to one reporting unit, the Company's previous ARP segment, for goodwill impairment testing.  As the change to one reporting segment was made after October 1, 2014, management performed the analysis on goodwill under the ARP segment as of October 1, 2014. The Company has historically estimated the fair value of our previous ARP segment reporting unit using a discounted cash flow (DCF) analysis (“step one” analysis) of the Company’s projected future results. In 2012, the Company applied the accounting guidance which allows an entity to first assess qualitative factors to determine if it is more likely than not that the fair value of a reporting unit is less than its carrying amount (“step zero” analysis). In performing the impairment test in the fourth quarter of 2013 and 2014, the Company used the "step one" analysis. This analysis requires a comparison of the carrying value of the reporting unit to the estimated fair value of the reporting unit.  Determining the fair value of goodwill is subjective in nature and often involves the use of estimates and assumptions. The Company's annual test did not result in an impairment charge in 2014 as the estimated fair value of the ARP segment reporting unit continued to exceed the carrying value by a significant enough amount such that any reasonably likely change in the assumptions used in the analysis would not cause the carrying value to exceed the estimated fair value for the reporting unit as determined under our "step one" analysis. No goodwill impairments were recorded in 2014 , 2013 or 2012 .

The Company utilizes the income approach based on a DCF analysis to determine fair value estimates, and then uses market comparisons as a reasonability check to ensure that neither the income approach nor the market comparisons yielded significantly different results. The income approach calculates the fair value by estimating the after-tax cash flows attributable to a reporting unit and then discounting the after-tax cash flows to a present value using a risk-adjusted discount rate.  The Company's estimates are based on revenue projections by product line, and include judgment based on historical growth and scheduled product approvals by the various governmental authorities.  The Company believes its assumptions are consistent with the plans and estimates used to manage the underlying businesses. The most significant assumptions used in the DCF methodology are the discount rate, based upon the estimated weighted average cost of capital (WACC), and the terminal growth rate, based upon strategic studies the Company commissioned and the Company's internal analysis.  


64


The Company used the following rates in 2014:

Assumptions
 
2014
WACC
 
14.5
%
Terminal Growth Rate
 
2.9
%
 
To determine the Company's WACC rate, management performed a peer company analysis and considered the weighted average return on debt and equity, the updated risk-free interest rate, beta, equity risk premium, and entity specific size risk premium.  The Company's analysis yielded an estimated fair value in excess of the carrying value by over 25% for 2014.

Concurrent with the above analysis, management performed a sensitivity analysis based upon reasonably likely changes to determine if the DCF analysis would result in impairment if the following changes were made to management's assumptions:  i) assumed the fair value of the reporting unit was lower by 10% or ii) future revenue was 75% of the Company's projections in the DCF model.  Neither of these sensitivity analyses resulted in an estimated fair value less than the carrying amount of the reporting unit.

Intangible assets are amortized on a straight line basis over their respective estimated useful lives ranging from 5 to 15 years. As a result of the acquisition of GenturaDx in July 2012, the Company acquired in process research and development of $40.1 million .  In-process research and development will be an indefinite-lived intangible asset until completion or abandonment at which point it will be accounted for as a finite-lived intangible asset or written off if abandoned.

Impairment of Long-Lived Assets

Long-lived assets held and used by the Company are reviewed for impairment whenever events or changes in circumstances indicate that their net book value may not be recoverable. When such factors and circumstances exist, the Company compares the projected undiscounted future cash flows associated with the related asset or group of assets over their estimated useful lives against their respective carrying amounts. Impairment, if any, is based on the excess of the carrying amount over the fair value of those assets and is recorded in the period in which the determination was made.

Revenue Recognition and Allowance for Doubtful Accounts

Revenue is generated primarily from the sale of the Company’s products and related services, which are primarily support and maintenance services on the Company's systems.  The Company recognizes product revenue at the time the product is shipped provided there is persuasive evidence of an agreement, no right of return exists, the fee is fixed or determinable and collectability is probable.  There is no customer right of return in the Company’s sales agreements.  If the criteria for revenue recognition are not met at the time of shipment, the revenue is deferred until all criteria are met.

The Company regularly enters into arrangements for system sales that are multiple-element arrangements, including services such as installation and training, and multiple products.   These products or services are primarily delivered within a short time frame, approximately three to six months, of the agreement execution date and can also be performed by one of the Company’s third-party partners.  Based on the terms and conditions of the sale, management believes that these services can be accounted for separately from the delivered system as the delivered products have value to customers on a stand-alone basis.  Items are considered to have stand-alone value when they are sold separately by any vendor or when the customer could resell the item on a stand-alone basis.   Accordingly, the estimated selling price of services or products not yet performed or delivered at the time of system shipment are deferred and recognized as revenue as such services are performed.  The Company has typically been able to determine the selling price of each deliverable in a multiple-element arrangement based on the price for such deliverable when it is sold separately.  If vendor specific objective evidence (VSOE) is not determinable and when third-party evidence is not available, management uses the estimated selling price of a deliverable which is determined based upon the Company’s pricing policies, expected margin of the deliverable, geographical location and information gathered from customer negotiations.

The Company provides systems and certain other hardware to customers through reagent rental agreements under which the customers commit to purchasing minimum quantities of disposable products at a stated price over a defined contract term, which is normally two to three years. Instead of rental payments, the Company recovers the cost of providing the system and other hardware in the amount charged for diagnostic assays and other disposables. Revenue is recognized over the defined contract term as assays and other disposable products are shipped. The depreciation costs associated with the system and other hardware are charged to cost of sales on a straight-line basis over the estimated life of the system. The costs to maintain these instruments in the field are charged to cost of sales as incurred.

65


Revenue from extended service agreements is deferred and recognized ratably over the term of the agreement.  The Company may also be entitled to milestone payments that are contingent upon achieving a predefined objective. The Company follows the milestone method of recognizing revenue from milestones and milestone payments are recorded as revenue in full upon achievement of the milestone. Revenues from royalties related to agreements with strategic partners are recognized when such amounts are reported to the Company; therefore, the underlying end user sales may be related to prior periods.

Additional revenue is derived from cost-type contracts with the U.S. government. Revenue and profit under cost-plus service contracts is recognized as costs are incurred plus negotiated fees. Fixed fees on cost-plus service contracts are recognized ratably over the contract performance period as services are performed. Contract costs include labor and related employee benefits, subcontracting costs and other direct costs, as well as allocations of allowable indirect costs. For contract change orders, claims or similar items, judgment is required for estimating the amounts, assessing the potential for realization, and determining whether realization is probable. From time to time, facts develop that require revisions of revenue recognized or cost estimates. To the extent that a revised estimate affects the current or an earlier period, the cumulative effect of the revision is recognized in the period in which the facts requiring the revision become known. Reimbursements of certain costs, including certain hardware costs or out-of-pocket expenses are included in revenue with corresponding costs included in cost of revenue as costs are incurred.

The Company continuously monitors collections and payments from its customers and maintains allowances for doubtful accounts based upon its historical experience and any specific customer collection issues that have been identified. While such credit losses have historically been within the Company’s expectations, there can be no assurance that the Company will continue to experience the same level of credit losses that it has in the past. A significant change in the liquidity or financial position of any one of the Company’s significant customers, or a deterioration in the economic environment, in general, could have a material adverse impact on the collectability of the Company’s accounts receivable and its future operating results, including a reduction in future revenues and additional allowances for doubtful accounts.

Product-Related Expenses

The Company provides for the estimated cost of initial product warranties at the time revenue is recognized. While the Company engages in product quality programs and processes, the Company’s warranty obligation is affected by product failure rates, material usage and service delivery costs incurred in correcting a product failure. Should actual product failure rates, material usage or service delivery costs differ from the Company’s estimates, revisions to the estimated warranty liability would be required.  Shipping and handling costs associated with product sales are included in cost of sales. Advertising costs are charged to operations as incurred.  The Company does not have any direct-response advertising.   Advertising expenses, which include trade shows and conventions, were approximately $2.3 million , $2.6 million and $2.4 million for 2014 , 2013 and 2012 , respectively, and were included in selling, general and administrative expense in the Consolidated Statements of Comprehensive Income.

Research and Development Costs

Research and development costs are expensed in the period incurred.  Nonrefundable advance payments for research and development activities for materials, equipment, facilities, and purchased intangible assets that have an alternative future use are deferred and capitalized.  The capitalized amounts are expensed as the related goods are delivered or the services are performed.  In addition, the Company capitalizes certain internally developed products used for evaluation during development projects that also have alternative future uses.  These internally developed assets are generally depreciated on a straight-line basis over the useful life of the assets, which range from one to two years.

Foreign Currency Translation
 
The financial statements of the Company’s foreign subsidiaries are translated in accordance with ASC 830, “Foreign Currency Matters”. The reporting currency for the Company is the U.S. dollar. With the exception of its Canadian subsidiary, whose functional currency is the U.S. dollar, the functional currency of the Company’s foreign subsidiaries is their local currency. Accordingly, assets and liabilities of these subsidiaries are translated at the exchange rate in effect at each balance sheet date. Before translation, the Company re-measures foreign currency denominated assets and liabilities, including inter-company accounts receivable and payable, into the functional currency of the respective entity, resulting in unrealized gains or losses recorded in selling, general and administrative expenses in the Consolidated Statement of Comprehensive Income. Revenues and expenses are translated using average exchange rates during the respective period. Foreign currency translation adjustments are accumulated as a component of other comprehensive income as a separate component of stockholders’ equity. Gains and losses arising from transactions denominated in foreign currencies are included in selling, general and administrative expenses in the Consolidated Statement of Comprehensive Income and to date have not been material.
 

66


Incentive Compensation

Management incentive plans are tied to various financial and non-financial performance metrics. Bonus accruals made throughout the year related to the various incentive plans are based on management’s best estimate of the achievement of the specific metrics. Adjustments to the accruals are made on a quarterly basis as forecasts of performance are updated. At year-end, the accruals are adjusted to reflect the actual results achieved.

Income Taxes

The Company accounts for income taxes under the asset and liability method.  Deferred tax assets and liabilities are recognized for the estimated future tax consequences attributable to differences between the financial statement carrying amounts of existing assets and liabilities and their respective tax bases.  Deferred tax balances are adjusted to reflect tax rates based on currently enacted tax laws, which will be in effect in the years in which the temporary differences are expected to reverse.  The effect on deferred tax assets and liabilities of a change in tax rates is recognized in the results of operations in the period of the enactment date.  A valuation allowance is recorded to reduce the carrying amounts of deferred tax assets unless it is more likely than not that those assets will be realized.

The Company recognizes excess tax benefits associated with share-based compensation to stockholders’ equity only when realized. When assessing whether excess tax benefits relating to share-based compensation have been realized, the Company follows the with-and-without approach excluding any indirect effects of the excess tax deductions. Under this approach, excess tax benefits related to share-based compensation are not deemed to be realized until after the utilization of all other tax benefits available to the Company.
 
The Company accounts for uncertain tax positions in accordance with ASC 740, “Income Taxes” which clarifies the accounting for uncertainty in tax positions. These provisions require recognition of the impact of a tax position in the Company’s financial statements only if that position is more likely than not of being sustained upon examination by taxing authorities, based on the technical merits of the position. Any interest and penalties related to uncertain tax positions will be reflected as a component of income tax expense.

Earnings Per Share

Basic net income per share is computed by dividing the net income for the period by the weighted average number of common shares outstanding during the period. Diluted net income per share is computed by dividing the net income for the period by the weighted average number of common shares and potential common shares from outstanding stock options, restricted stock units and contingently issuable shares resulting from an award subject to performance or market conditions determined by applying the treasury stock method. In periods with a net loss, potentially dilutive securities composed of incremental common shares issuable upon the exercise of stock options and warrants, and common shares issuable on conversion of preferred stock, would be excluded from historical diluted loss per share because of their anti-dilutive effect.

Stock-Based Compensation

The Company accounts for stock-based employee compensation plans under the fair value recognition and measurement provisions of ASC 718 “Stock Compensation” (ASC 718).  ASC 718 requires the recognition of compensation expense, using a fair-value based method, for costs related to all share-based payments including stock options, restricted stock units and shares issued under the Company’s employee stock purchase plan. Pursuant to ASC 718, stock-based compensation cost is measured at the grant date, based on the fair value of the award, and is recognized as expense over the requisite service period.

Segment Reporting

During the fourth quarter of 2014, in conjunction with the appointment of our new CEO, the Company evaluated its historical reporting segments: the technology and strategic partnerships (TSP) segment and the assays and related products (ARP) segment. As a result of this evaluation and based upon how the new Chief Executive Officer as Chief Operating Decision Maker (“CODM”) and the Company's management team collectively is managing its business, management determined that the two former segments have become so integrated and interrelated that they no longer provide an accurate representation of the Company's current business when reported separately. Additionally, management has taken actions to consolidate sales and service functions. Effective with the fourth quarter of 2014, the Company no longer has two operating segments and, accordingly, will present the Company's business as one operating segment and one reporting unit. Accordingly, prior periods' information has been restated to conform to the current periods' presentation.  See Note 19 – Segment and Geographic Information.


67


NOTE 2 — RESTRUCTURING

In August 2013, the Company announced a restructuring plan focused on its Newborn Screening Group and its Brisbane, Australia office where automated punching systems were designed and manufactured. The Company halted development of the newborn screening assay in 2013. In the first quarter of 2014, management determined that it would close the manufacturing facility in Brisbane, Australia and the facility was closed in the third quarter of 2014. The Company reviewed the requirements for held-for-sale and discontinued operations presentation and determined the manufacturing facility in Brisbane, Australia did not meet the altered definition of a discontinued operation under the amended accounting guidance as it was not a strategic shift with a major effect on the Company's operations and finances. Management has applied this new guidance for the facility in Brisbane, Australia.

The Company has recorded pre-tax restructuring charges primarily consisting of the non-cash impairment of inventory, intangible assets, property and equipment, together with employee separation costs. The Company measured and accrued the liabilities associated with employee separation costs at fair value as of the date the plan was announced and terminations were communicated to employees, which primarily included severance pay and other separation costs such as outplacement services and benefits. As a result of the organizational change, the Company eliminated approximately 5% of its aggregate workforce. In conjunction with the restructuring plan, the Company evaluated its tangible and intangible assets for estimated impairment and recorded non-cash impairment charges of $4.1 million in 2013 and a further impairment of $2.8 million in 2014 , including a write-down of goodwill of $1.2 million resulting from the disposal of the manufacturing facility in Brisbane, Australia. The Company determined the fair value of the assets based upon prices for similar assets. The amount of goodwill the Company included in the carrying amount of the disposed manufacturing facility in Brisbane, Australia was based upon the relative fair value of that business compared to the portion of the reporting unit that was retained. See Note 9 — Goodwill and Other Intangible Assets. Pretax loss related to the Brisbane, Australia facility was $2.8 million , $3.9 million and $2.5 million for the years ended December 31, 2014, 2013 and 2012, respectively.

The Company measured and accrued the facilities exit costs at fair value upon the Company's exit in the third quarter of 2014. Facilities exit costs primarily consist of cease-use losses recorded upon vacating the facilities.
 
 
Twelve Months Ended December 31,
2013 Restructuring Plan
 
2014
 
2013
 
 
 
 
 
Non-cash impairment charges:
 
 
 
 
Inventory
 
$
1,183

 
$
2,326

Property and equipment
 
494

 
1,110

Intangible Assets
 

 
700

Goodwill
 
1,159

 

Employee separation costs
 
154

 
783

Facility exit costs
 
69

 

Other
 
41

 
50

Total charges
 
$
3,100

 
$
4,969

Recorded to cost of revenue
 
1,218

 
2,551

Recorded to restructuring costs
 
$
1,882

 
$
2,418

 
 
 
 
 
Rollforward of Accrued Restructuring
 
December 31, 2014
 
December 31, 2013
 
 
 
 
 
Balance at beginning of year
 
$
128

 
$

Total charges
 
3,100

 
4,969

Non-cash impairment charges
 
(2,836
)
 
(4,136
)
Employee separation payments
 
(286
)
 
(655
)
Facility exit costs
 
(69
)
 

Foreign exchange and other adjustments
 
(37
)
 
(50
)
Balance at end of period
 
$

 
$
128

 
 
 
 
 

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NOTE 3 – BUSINESS COMBINATIONS

2012 Acquisition

On July 11, 2012, the Company completed its acquisition of GenturaDx, Inc., a British Virgin Islands corporation with operations in Hayward, California (GenturaDx). GenturaDx was a molecular diagnostics company in late stage development of a fully integrated, highly automated, real-time polymerase chain reaction (PCR) system that employs a single-use cassette for sample-to-answer workflow. Under the terms of the acquisition agreement, the Company acquired all of the outstanding capital stock of GenturaDx in exchange for approximately $49.3 million cash consideration, subject to working capital adjustments, plus (i) $3.0 million in consideration contingent upon achieving certain future development and regulatory milestones by December 31, 2013, (ii) up to $7.0 million in consideration contingent upon achieving certain future development and regulatory milestones by June 30, 2014 and (iii) additional consideration contingent upon acquired products exceeding certain revenue thresholds in each of 2013, 2014 and 2015.  No additional amounts have been paid or are expected to be paid related to the contingent consideration and our original contingent consideration liability estimate of $1.4 million adjusted to $0 in 2013 as a component of other income, net based on changes in the fair value of the liability resulting from changes in the assumptions pertaining to the achievement of the defined milestones and revenue thresholds.

Of the approximately $8.1 million related to the GenturaDx acquisition that was deposited in escrow as security for potential indemnity claims and certain other expressly enumerated matters, approximately $5.0 million remains in escrow as of December 31, 2014 . The Company's acquisition of GenturaDx was funded with cash on hand. The results of operations for GenturaDx have been included in the Company’s consolidated financial statements from the date of acquisition.

The purchase price consideration is as follows (in thousands):
Cash
$
49,276

Contingent consideration
1,370

Total purchase price
$
50,646


The acquisition of GenturaDx has been accounted for as a business combination in accordance with ASC 805 and, as such, the assets acquired and liabilities assumed have been recorded at their respective fair values. The determination of fair value for the identifiable tangible and intangible assets acquired and liabilities assumed requires extensive use of estimates and assumptions. Significant estimates and assumptions include, but are not limited to estimating future cash flows and determining the appropriate discount rate. The following table summarizes the estimated fair values of GenturaDx’s assets acquired and liabilities assumed at the acquisition date (in thousands):
Net tangible liabilities assumed as of July 11, 2012
$
(272
)
Intangible assets subject to amortization
40,100

Deferred tax assets, net
2,526

Goodwill
8,292

Total purchase price
$
50,646


The $40.1 million of intangible assets subject to amortization have been identified as in-process research and development (IPR&D) that had not yet reached technological feasibility as of the acquisition date. Technological feasibility is primarily established by obtaining regulatory approval to perform certain diagnostic testing on the Company's systems. The IPR&D project relates to GenturaDx's diagnostic testing prototype system designed to run sample-to-answer cassettes in clinical settings and the related cassette design. This project, renamed ARIES, is expected to be completed in 2015. The fair value of the IPR&D has been estimated using the multi-period excess earnings method, a form of the income approach and cash flow projections were discounted using a rate of 29.5% , which reflects the risk associated with the intangible asset related to the other assets and the overall business operations of the Company.

The excess of the purchase price over the fair value of the tangible net assets, liabilities and intangible assets acquired was recorded to goodwill. The goodwill recognized is mainly attributable to the compatibility between the Company's MultiCode-RTx chemistry and the prototype system and the expectation that the system together with the Company's MultiCode-RTx chemistry will allow the Company to leverage years of previous assay development and make custom assay development accessible to a greater number of diagnostic labs, even those with little molecular diagnostics experience.


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Acquisition related costs of $4.3 million have been included in selling, general and administrative costs for 2012.  GenturaDx had no revenue and operating loss of $7.9 million from the date of acquisition to December 31, 2012, including the impact of the acquisition costs.  In the fourth quarter of 2012, the Company ceased using the Hayward, California facility, whose operating lease commitment, which ends in August 2015, was acquired under the GenturaDx acquisition in July 2012. The Company accrued a liability based upon the estimated fair value of the costs that will continue to be incurred under the lease, including sublease rental income. The total minimum rentals the Company is expected to receive under the non-cancellable sublease for the Hayward, California facility was approximately $350,000 as of December 31, 2014.

Unaudited Pro Forma Financial Information

GenturaDx’s results of operations have been included in the Company’s financial statements since the date of the acquisition. The unaudited pro forma financial information set forth below assumes that GenturaDx had been acquired at the beginning of 2012, and includes removal of interest expense on GenturaDx’s debt extinguished at the date of acquisition, removal of acquisition costs and the impact of purchase accounting adjustments, and tax adjustments. This unaudited pro forma financial information is presented for informational purposes only and is not necessarily indicative of the results of operations that actually would have resulted had the acquisition been in effect at the beginning of 2012. In addition, the unaudited pro forma financial information is not intended to be a projection of future results and does not reflect any operating efficiencies or cost savings that might be achievable.
 
Year Ended
December 31, 2012
 
(unaudited, in thousands except per share data)
 
 
Revenue
$
202,582

Income from operations
16,276

Net income
9,118

Net income per common share, basic
$
0.22

Shares used in computing net income per common share, basic
40,927

Net income per common share, diluted
$
0.22

Shares used in computing net income per common share, diluted
41,884


NOTE 4 – INVESTMENTS

Available-for-sale securities consisted of the following as of December 31, 2014 (in thousands):
 
Amortized Cost
 
Gains in Accumulated Other Comprehensive Income (Loss)
 
Losses in Accumulated Other Comprehensive Income (Loss)
 
Estimated Fair Value
Current:
 
 
 
 
 
 
 
Money Market funds
$
3,569

 
$

 
$

 
$
3,569

Total current securities
3,569

 

 

 
3,569

Noncurrent:
 

 
 

 
 

 
 

Government sponsored debt securities
10,000

 

 
(11
)
 
9,989

Non-government sponsored debt securities
6,002

 

 
(16
)
 
5,986

Total noncurrent securities
16,002

 

 
(27
)
 
15,975

Total available-for-sale securities
$
19,571

 
$

 
$
(27
)
 
$
19,544



70


Available-for-sale securities consisted of the following as of December 31, 2013 (in thousands):
 
Amortized Cost
 
Gains in Accumulated Other Comprehensive Income (Loss)
 
Losses in Accumulated Other Comprehensive Income (Loss)
 
Estimated Fair Value
Current:
 
 
 
 
 
 
 
Money Market funds
$
46,422

 
$

 
$

 
$
46,422

Non-government sponsored debt securities
4,517

 

 

 
4,517

Total current securities
50,939

 

 

 
50,939

Noncurrent:
 

 
 

 
 

 
 

Non-government sponsored debt securities

 

 

 

Total noncurrent securities

 

 

 

Total available-for-sale securities
$
50,939

 
$

 
$

 
$
50,939

 
       There were $0 in proceeds from the sales of available-for-sale securities during the years ended December 31, 2014 and 2013 .  Realized gains and losses on sales of investments are determined using the specific identification method and are included in other income (expense) in the Consolidated Statement of Comprehensive Income. Net unrealized holding losses on available-for-sale securities are included in accumulated other comprehensive (loss) income as of December 31, 2014. All of the Company's available-for-sale securities with gross unrealized losses as of December 31, 2014 and 2013 had been in a loss position for less than 12 months.
 
The estimated fair value of available-for-sale debt securities at December 31, 2014 , by contractual maturity, was as follows (in thousands):
 
 
Estimated Fair Value
Due in one year or less
$

Due after one year through two years
15,975

 
$
15,975

 
Expected maturities may differ from contractual maturities because the issuers of the securities may have the right to prepay obligations without prepayment penalties.

NOTE 5 - ACCOUNTS RECEIVABLE AND RESERVES

The Company records an allowance for doubtful accounts based upon a specific review of all outstanding invoices, known collection issues and historical experience. The Company regularly evaluates the collectability of its trade accounts receivables and performs ongoing credit evaluations of its customers and adjusts credit limits based upon payment history and its assessment of the customer’s current creditworthiness. These estimates are based on specific facts and circumstances of particular orders, analysis of credit memo data and other known factors.  Accounts receivable consisted of the following at December 31 (in thousands):

 
2014
 
2013
Accounts receivable
$
33,452

 
$
35,527

Less: Allowance for doubtful accounts
(4,357
)
 
(4,579
)
 
$
29,095

 
$
30,948



71


The following table summarizes the changes in the allowance for doubtful accounts (in thousands):

Balance at December 31, 2011
$
117

Increases charged to costs and expenses
335

Write-offs of uncollectible accounts
(8
)
Balance at December 31, 2012
$
444

Increases charged to costs and expenses
4,604

Write-offs of uncollectible accounts
(469
)
Balance at December 31, 2013
$
4,579

Recoveries charged to costs and expenses
(123
)
Write-offs of uncollectible accounts
(99
)
Balance at December 31, 2014
$
4,357


NOTE 6 - INVENTORIES, NET

Inventories consisted of the following at December 31 (in thousands):

 
2014
 
2013
Parts and supplies
$
19,354

 
$
19,002

Work-in-progress
8,687

 
4,747

Finished goods
8,575

 
6,738

 
$
36,616

 
$
30,487


The Company has non-cancellable purchase commitments with certain of its component suppliers in the amount of approximately $20.1 million at December 31, 2014 . Should production requirements fall below the level of the Company’s commitments, the Company could be required to take delivery of inventory for which it has no immediate need or incur an increased cost per unit going forward.

NOTE 7 – FAIR VALUE MEASUREMENT
 
ASC 820 defines fair value, establishes a framework for measuring fair value under generally accepted accounting principles and enhances disclosures about fair value measurements. Fair value is defined as the exchange price that would be received for an asset or paid to transfer a liability (an exit price) in the principal or most advantageous market for the asset or liability in an orderly transaction between market participants on the measurement date. Valuation techniques used to measure fair value must maximize the use of observable inputs and minimize the use of unobservable inputs. The ASC describes a fair value hierarchy based on the following three levels of inputs that may be used to measure fair value, of which the first two are considered observable and the last unobservable:
 
Level 1—Quoted prices in active markets for identical assets or liabilities.
 
Level 2—Inputs other than Level 1 that are observable, either directly or indirectly, such as quoted prices for similar assets or liabilities; quoted prices in markets that are not active; or other inputs that are observable or can be corroborated by observable market data for substantially the full term of the assets or liabilities.
 
Level 3—Unobservable inputs that are supported by little or no market activity and that are significant to the fair value of the assets or liabilities.

The Company determines the fair value of its investment portfolio assets by obtaining non-binding market prices from its third-party portfolio managers on the last day of the quarter, whose sources may use quoted prices in active markets for identical assets (Level 1 inputs) or inputs other than quoted prices that are observable either directly or indirectly (Level 2 inputs) in determining fair value.  There were no transfers between Level 1, Level 2 or Level 3 measurements for the year ended December 31, 2014 .
 

72


The following table represents the Company’s fair value hierarchy for its financial assets and liabilities measured at fair value on a recurring basis as of December 31, 2014 and 2013 (in thousands):
 
Fair Value Measurements at December 31, 2014
 
Level 1
 
Level 2
 
Level 3
 
Total
Assets:
 
 
 
 
 
 
 
Money Market funds
$
3,569

 
$

 
$

 
$
3,569

Government sponsored debt securities

 
9,989

 

 
9,989

Non-government sponsored debt securities

 
5,986

 

 
5,986

 
 
 
 
 
 
 
 
 
Fair Value Measurements at December 31, 2013
 
Level 1
 
Level 2
 
Level 3
 
Total
Assets:
 

 
 

 
 

 
 

Money Market funds
$
46,422

 
$

 
$

 
$
46,422

Non-government sponsored debt securities

 
4,517

 

 
4,517


The Company records contingent consideration resulting from a business combination at its fair value on the acquisition date. The Company determines the fair value of the contingent consideration based primarily on the timing and probability of success of clinical events or regulatory approvals, the timing and probability of success of meeting commercial milestones, such as sales levels of a specific product, and discount rates. The contingent consideration liability arose in connection with the GenturaDx acquisition. The Company re-evaluates its assumptions for its contingent consideration fair value determinations each quarter. Changes to the fair value of contingent consideration obligations can result from adjustments to discount rates, accretion of the discount rates due to the passage of time, changes in our estimates of the likelihood of or timing of achieving any development or commercial milestones, changes in the probability of certain clinical events or changes in the assumed probability associated with regulatory approval. As a result of changes in assumptions surrounding the probability of success of meeting the timing of commercial milestones contemplated in the GenturaDx acquisition agreement, the Company adjusted the contingent consideration liability related to the GenturaDx acquisition to $0 in 2013. The assumptions related to determining the value of contingent consideration include a significant amount of judgment, and any changes in the underlying estimates could have a material impact on the amount of contingent consideration expense recorded in any given period.

Changes in the recurring fair value measurements of financial assets and liabilities using significant unobservable inputs (Level 3) during the years ended December 31, 2014 and 2013 were as follows (in thousands):
 
2014
 
2013
Beginning balance
$

 
$
1,370

Contingent consideration recorded at acquisition

 

Fair value adjustments

 
(1,370
)
Ending balance
$

 
$


73


NOTE 8 - PROPERTY AND EQUIPMENT

Property and equipment consisted of the following at December 31 (in thousands):
 
2014
 
2013
Laboratory equipment
$
33,137

 
$
27,519

Leasehold improvements
26,119

 
22,881

Computer equipment
7,659

 
7,415

Purchased software
20,440

 
18,843

Furniture and fixtures
4,754

 
4,903

Assets on loan/rental
5,229

 
4,027

Capital lease equipment
1,321

 
116

 
98,659

 
85,704

Less: Accumulated depreciation
(58,714
)
 
(52,911
)
 
$
39,945

 
$
32,793


Depreciation expense was $8.9 million , $10.2 million , and $8.8 million for the years ended December 31, 2014 , 2013 , and 2012 , respectively.

NOTE 9 - GOODWILL AND OTHER INTANGIBLE ASSETS

On July 11, 2012, the Company completed the acquisition of GenturaDx.  As a result, the Company recorded approximately $8.3 million of goodwill and approximately $40.1 million of other identifiable intangible assets.  This goodwill is not expected to be deductible for tax purposes. The changes in the carrying amount of goodwill during the period are as follows (in thousands):

 
2014
 
2013
Balance at beginning of year
$
50,738

 
$
51,128

Allocation in disposal of Brisbane, Australia business (See Note 2)
(1,159
)
 

Foreign currency translation adjustments
40

 
(390
)
Balance at end of year
$
49,619

 
$
50,738

 
 
 
 
The current in process research and development project is scheduled to be completed in 2015. The estimated costs to complete this project are between $2.0 million and $4.0 million .


74


The Company’s intangible assets are reflected in the table below (in thousands, except weighted average lives):

 
Finite-lived
 
Indefinite-lived
 
 
 
Technology, trade secrets and know-how
 
Customer lists and contracts
 
Other identifiable intangible assets
 
IP R&D
 
Total
2013
 
 
 
 
 
 
 
 
 
Balance at December 31, 2012
$
30,030

 
$
7,986

 
$
1,941

 
$
40,627

 
$
80,584

Write-off/Impairment
(214
)
 
(7
)
 
(20
)
 
(454
)
 
(695
)
Foreign currency translation adjustments
(140
)
 
(27
)
 
(41
)
 
(73
)
 
(281
)
Balance at December 31, 2013
29,676

 
7,952

 
1,880

 
40,100

 
79,608

Less: accumulated amortization:
 

 
 

 
 

 
 

 
 

Accumulated amortization balance at December 31, 2012
(13,193
)
 
(1,560
)
 
(613
)
 

 
(15,366
)
Amortization expense
(3,172
)
 
(787
)
 
(140
)
 

 
(4,099
)
Foreign currency translation adjustments
93

 
21

 
38

 

 
152

Accumulated amortization balance at December 31, 2013
(16,272
)
 
(2,326
)
 
(715
)
 

 
(19,313
)
Net balance at December 31, 2013
$
13,404

 
$
5,626

 
$
1,165

 
$
40,100

 
$
60,295

Weighted average life (in years)
10

 
11

 
9

 
 

 
 

 
 
 
 
 
 
 
 
 
 
2014
 

 
 

 
 

 
 

 
 

Balance at December 31, 2013
$
29,676

 
$
7,952

 
$
1,880

 
$
40,100

 
$
79,608

Foreign currency translation adjustments
28

 
6

 
10

 

 
44

Balance at December 31, 2014
29,704

 
7,958

 
1,890

 
40,100

 
79,652

Less: accumulated amortization:
 

 
 

 
 

 
 

 
 

Accumulated amortization balance at December 31, 2013
(16,272
)
 
(2,326
)
 
(715
)
 

 
(19,313
)
Amortization expense
(3,025
)
 
(753
)
 
(135
)
 

 
(3,913
)
Foreign currency translation adjustments
(28
)
 
(6
)
 
(10
)
 

 
(44
)
Accumulated amortization balance at December 31, 2014
(19,325
)
 
(3,085
)
 
(860
)
 

 
(23,270
)
Net balance at December 31, 2014
$
10,379

 
$
4,873

 
$
1,030

 
$
40,100

 
$
56,382

Weighted average life (in years)
10

 
11

 
11

 
 

 
 


The estimated aggregate amortization expense for the next five years and thereafter is as follows (in thousands):

2015
$
3,232

2016
3,100

2017
2,144

2018
1,954

2019
1,954

Thereafter
3,898

 
16,282

IPR&D
40,100

 
$
56,382



75


NOTE 10 — OTHER COMPREHENSIVE (LOSS) INCOME

Comprehensive (loss) income represents a measure of all changes in equity that result from recognized transactions and other economic events other than those resulting from investments by and distributions to shareholders. Other comprehensive (loss) income for the Company includes foreign currency translation adjustments and net unrealized holding gains and losses on available-for-sale investments.

The following table presents the changes in each component of accumulated other comprehensive (loss) income, net of tax (in thousands):
 
Foreign Currency Items
 
Available for Sale Investments
 
Accumulated Other Comprehensive Income Items
Beginning balance, December 31, 2013
$
419

 
$

 
$
419

Other comprehensive loss before reclassifications
(1,146
)
 
(10
)
 
(1,156
)
Amounts reclassified from accumulated other comprehensive loss

 
(7
)
 
(7
)
Net current-period other comprehensive loss
(1,146
)
 
(17
)
 
(1,163
)
Ending balance, December 31, 2014
$
(727
)
 
$
(17
)
 
$
(744
)

The following table presents the tax (expense) benefit allocated to each component of other comprehensive (loss) income (in thousands):
 
Twelve Months Ended December 31, 2014
 
Before Tax
 
Tax Benefit
 
Net of Tax
Foreign currency translation adjustments
$
(1,146
)
 
$

 
$
(1,146
)
Unrealized (losses) gains on available-for-sale investments
(27
)
 
10

 
(17
)
Other comprehensive (loss) income
$
(1,173
)
 
$
10

 
$
(1,163
)


NOTE 11 – OTHER ASSETS

Other assets consisted of the following at December 31 (in thousands):
 
2014
 
2013
Purchased technology rights (net of accumulated amortization of $3,392 and $3,965 in 2014 and 2013, respectively)
$
1,543

 
$
2,943

Cost-method investments
1,000

 
1,000

Other
642

 
959

 
3,185

 
4,902

Less: Current portion

 
(965
)
 
$
3,185

 
$
3,937


For the years ended December 31, 2014 and 2013 , the Company recognized amortization expense related to the amortization of purchased technology rights of approximately $1,410,000 and $1,639,000 , respectively.  Future amortization expense is estimated to be $392,000 in 2015 , $166,000 in 2016 , $148,000 in 2017 , $102,000 in 2018 , $90,000 in 2019 and $645,000 thereafter.

Non-Marketable Securities and Other-Than-Temporary Impairment

The Company owns a minority interest in a private company based in the U.S. through its investment of $1.0 million in the third quarter of 2012.  This minority interest is included at cost in other long-term assets on the Company’s Consolidated Balance Sheets as the Company does not have significant influence over the investee as the Company owns less than 20% of the voting equity and the investee is not publicly traded.  


76


The Company's other minority interest in a private company was acquired by a third party in July 2013 and, as a result, the Company's minority interest in that private company was sold. The Company realized a gain of $5.4 million on this minority interest investment in the third quarter of 2013.

The Company regularly evaluates the carrying value of cost-method investments for impairment and whether any events or circumstances are identified that would significantly harm the fair value of the investments. The primary indicators the Company utilizes to identify these events and circumstances are the investee's ability to remain in business, such as the investee's liquidity and rate of cash use, and the investee’s ability to secure additional funding and the value of that additional funding. In the event a decline in fair value is judged to be other-than-temporary, the Company will record an other-than-temporary impairment charge in other income, net in the Consolidated Statements of Operations. As the inputs utilized for the Company's periodic impairment assessment are not based on observable market data, these cost-method investments are classified within Level 3 of the fair value hierarchy. To determine the fair value of these investments, the Company uses all available financial information related to the entities, including information based on recent or pending third-party equity investments in these entities. In certain instances, a cost-method investment's fair value is not estimated as there are no identified events or changes in the circumstances that may have a significant adverse effect on the fair value of the investment and to do so would be impractical.

NOTE 12 - ACCRUED LIABILITIES
 
Accrued liabilities consisted of the following as of December 31 (in thousands):
 
2014
 
2013
Compensation and employee benefits
$
9,960

 
$
6,619

Income and other taxes
870

 
1,314

Warranty costs
488

 
721

Other
2,800

 
2,970

 
$
14,118

 
$
11,624


Sales of certain of the Company’s systems are subject to a warranty.  System warranties typically extend for a period of twelve months from the date of installation or no more than 15 months from the date of shipment.  The Company estimates the amount of warranty claims on sold products that may be incurred based on current and historical data.  The actual warranty expense could differ from the estimates made by the Company based on product performance.  Warranty expenses are evaluated and adjusted periodically.

The following table summarizes the changes in the warranty accrual (in thousands):
Accrued warranty costs at December 31, 2011
$
681

Warranty expenses
(1,119
)
Accrual for warranty costs
1,041

Accrued warranty costs at December 31, 2012
603

Warranty expenses
(1,150
)
Accrual for warranty costs
1,268

Accrued warranty costs at December 31, 2013
721

Warranty expenses
(914
)
Accrual for warranty costs
681

Accrued warranty costs at December 31, 2014
$
488


77



NOTE 13 - INCOME TAXES

The components of income before income taxes for the years ended December 31 are as follows (in thousands):
 
2014
 
2013
 
2012
Domestic
$
12,762

 
$
20,301

 
$
28,241

Foreign
15,323

 
(8,877
)
 
(5,461
)
Total
$
28,085

 
$
11,424

 
$
22,780


The components of the provision (benefit) for income taxes attributable to continuing operations for the years ended December 31 are as follows (in thousands):
 
2014
 
2013
 
2012
Current:
 
 
 
 
 
Federal
$
2,191

 
$
4,024

 
$
4,158

Foreign
(1,833
)
 
406

 
(129
)
State
305

 
720

 
928

Total current
$
663

 
$
5,150

 
$
4,957

Deferred:
 

 
 

 
 

Federal
(2,471
)
 
(381
)
 
3,945

Foreign
(10,329
)
 
(1
)
 
1,179

State
1,179

 
(440
)
 
292

Total deferred
(11,621
)
 
(822
)
 
5,416

Total (benefit) provision for income taxes
$
(10,958
)
 
$
4,328

 
$
10,373


The provision for income taxes differs from the amount computed by applying the statutory federal rate to pretax income as follows (in percentages):
 
Year Ended December 31,
 
2014
 
2013
 
2012
Statutory tax rate
35.0
 %
 
35.0
 %
 
35.0
 %
State taxes, net of federal benefit
4.9
 %
 
0.3
 %
 
3.9
 %
Permanent items
(1.9
)%
 
(4.6
)%
 
2.0
 %
Effect of foreign operations
(3.0
)%
 
3.1
 %
 
0.5
 %
Research and incentive tax credit generated
(9.5
)%
 
(43.0
)%
 
(7.1
)%
Valuation allowance
(39.5
)%
 
42.6
 %
 
11.6
 %
Income tax reserves
(0.4
)%
 
4.9
 %
 
0.1
 %
Deferred charge
(9.1
)%
 
0.0
 %
 
0.0
 %
Worthless stock deduction
(6.2
)%
 
0.0
 %
 
0.0
 %
Nontaxable cancellation of debt
(10.7
)%
 
0.0
 %
 
0.0
 %
Other
1.4
 %
 
(0.4
)%
 
(0.5
)%
 
(39.0
)%
 
37.9
 %
 
45.5
 %


78


The Company accounts for income taxes using the liability method in accordance with ASC 740 "Income Taxes" . Under this method, deferred income taxes are recognized for the future tax consequences of differences between the tax and financial accounting bases of assets and liabilities at the end of each reporting period. Deferred income taxes are based on enacted tax laws and statutory tax rates applicable to the periods in which the differences are expected to affect taxable income. A valuation allowance is established when necessary to reduce deferred tax assets to the amounts expected to be realized. Significant components of the Company’s deferred tax assets and liabilities as of December 31 are as follows (in thousands):

 
2014
 
2013
Deferred tax assets:
 
 
 
Current deferred tax assets
 
 
 
Accrued liabilities and other
$
12,220

 
$
7,114

Deferred revenue
1,674

 
1,820

Gross current deferred tax assets
13,894

 
8,934

Valuation allowance
(691
)
 
(792
)
Net current deferred tax assets
13,203

 
8,142

Noncurrent deferred tax assets
 

 
 

Net operating loss and credit carryforwards
47,597

 
68,973

Deferred revenue
867

 
927

Depreciation and amortization
8,099

 
7,899

Stock compensation
5,231

 
4,871

Gross noncurrent deferred tax assets
61,794

 
82,670

Valuation allowance
(24,321
)
 
(49,294
)
Net noncurrent deferred tax assets
$
37,473

 
$
33,376

Deferred tax liabilities:
 

 
 

Current deferred tax liabilities
 

 
 

Accrued liabilities and other
$
(1,000
)
 
$
(877
)
Total current deferred tax liabilities
(1,000
)
 
(877
)
Net current deferred tax asset
12,203

 
7,265

Noncurrent deferred tax liabilities
 

 
 

Depreciation and amortization
(21,097
)
 
(19,788
)
Stock compensation
(50
)
 
(53
)
Acquired intangibles
(927
)
 
(1,622
)
Total noncurrent deferred tax liabilities
(22,074
)
 
(21,463
)
Net noncurrent deferred tax asset
15,399

 
11,913

Net deferred tax assets
$
27,602

 
$
19,178


Under ASC 740, the Company can only recognize a deferred tax asset to the extent that it is “more likely than not” that these assets will be realized. In evaluating the need for a valuation allowance, all available evidence, both positive and negative, is considered to determine whether, based on the weight of that evidence, a valuation allowance is needed. The Company has established a valuation allowance against a portion of its remaining deferred tax assets because it is more likely than not that certain deferred tax assets will not be realized. In determining whether deferred tax assets are realizable, the Company considered numerous factors including historical profitability, the amount of future taxable income and the existence of taxable temporary differences that can be used to realize deferred tax assets. The valuation allowance decreased approximately $25.1 million in 2014 from 2013 primarily due to our Canadian subsidiary which recorded a partial release to valuation allowances on its net deferred tax assets. Based on our recent history of generating income in Canada and our expectation to continue to generate future income in Canada for the next several years, we determined that it was more likely than not that a portion of Canadian deferred tax assets would be realized.


79


At December 31, 2014 , the Company had gross federal, state and foreign net operating loss carryforwards of approximately $71.4 million , $49.7 million , and $8.5 million respectively. These losses expire beginning in 2015 , except for $1.3 million of losses that have unlimited carryforward periods. Approximately $19.5 million of the federal net operating loss carryforward is attributable to excess employee stock option deductions, the benefit from which will be allocated to additional paid-in capital rather than current earnings if subsequently realized. Federal and state net operating losses of approximately $51.9 million and $49.7 million , respectively, were acquired as part of the acquisitions of U.S. companies. These acquired net operating losses are subject to annual limitations due to the "change of ownership" provisions of Section 382 of the Internal Revenue Code of 1986 and similar state provisions. The Company has federal, state, and foreign credit carryforwards of approximately $10.7 million , $2.2 million , and $12.8 million , respectively. These credits begin to expire in 2018 , except for approximately $4.0 million which have an indefinite carryforward period. Approximately $7.0 million of the federal credits are attributable to excess employee stock option deductions, the benefit of which has been allocated to additional paid-in capital rather than current earnings when realized. State credits of approximately $1.1 million were acquired as part of the acquisition of GenturaDx in 2012 and are subject to annual limitations due to the "change of ownership" provisions of Section 382 of the Internal Revenue Code of 1986 and similar California state tax provisions. In addition, the Company has a gross scientific research and experimental development pool in Canada of approximately $54.0 million which has an indefinite carryforward period.

Undistributed earnings of the Company's foreign subsidiaries are considered permanently reinvested and, accordingly, no provision for U.S. federal or state income taxes has been provided thereon.  The cumulative amount of undistributed earnings of the Company's non-US subsidiaries was approximately $1.3 million at December 31, 2014 , $0.9 million at December 31, 2013 , and $1.2 million at December 31, 2012 .  Determination of the amount of unrecognized deferred income tax liabilities on these earnings is not practicable at this time because such liability, if any, is dependent upon circumstances existing if and when remittance occurs.

In the fourth quarter of 2014, the Company recognized an income tax benefit of approximately $3.0 million to record deferred charges related to intercompany profits on sales of assets for which the assets had not been disposed of as of December 31, 2014.  Taxes due and paid on such intercompany profits are required to be recognized as a prepaid expense tax until the assets are sold to a third party. Approximately $2.5 million of this income tax benefit is attributable to years prior to 2014. The Company has concluded that the correction of the error of the prior period amounts is not material to any previously reported periods.

As of both December 31, 2014 and December 31, 2013 , the Company had recorded gross unrecognized tax benefits of approximately $2.3 million .  All of the unrecognized tax benefits as of December 31, 2014 , if recognized, would impact the effective tax rate.  The Company recognizes interest expense and penalties associated with uncertain tax positions as a component of income tax expense.  During the years ended December 31, 2014 and 2013 , the Company recognized approximately $31,900 and $14,000 in tax related interest and penalties, respectively.  Reserves for interest and penalties as of December 31, 2014 and 2013 are not significant as the Company has net operating loss carryovers.

A reconciliation of the beginning and ending balance of unrecognized tax benefits is as follows (in thousands):
 
2014
 
2013
Balance at beginning of year
$
2,333

 
$
1,760

Additions based on tax positions related to the current year
156

 
335

Additions for tax positions of prior years
58

 
238

Reductions for tax positions of prior years
(131
)
 

Lapse of statute of limitations
(98
)
 

Balance at end of year
$
2,318

 
$
2,333


As of December 31, 2014 , there were no unrecognized tax benefits that the Company expects would change significantly over the next 12 months.

The Company files U.S., state, and foreign income tax returns in jurisdictions with varying statutes of limitations.  In the United States and Canada, the statute of limitations with respect to the federal income tax returns for tax years after 2010 are open to audit; however, since the Company has net operating losses, the taxing authority has the ability to review tax returns prior to the 2010 tax year and make adjustments to these net operating loss carryforwards.  There are numerous other income tax jurisdictions for which tax returns are not yet settled, none of which are individually significant. We are currently under audit in Canada for the Company’s scientific research and experimental development pool claims for the 2011 tax year. Although we do not expect a material adjustment, the outcome of the audit is not known at this time.  We are not under audit in any other major taxing jurisdictions at this time.


80


NOTE 14 - LONG-TERM DEBT

On December 31, 2013 , long-term debt consisted of a loan payable to Technology Partnerships Canada in the amount of $1.6 million .

In May 2014, the Company repaid all of its outstanding debt. In 2014 and 2013 , the Company had imputed interest expense related to its long-term debt of $6,000 and $48,000 , respectively.  The effective interest rate was 3.90% as of December 31, 2013 .  At December 31, 2013 , the fair value of the Company’s long-term debt was approximately $1.5 million .  The Company’s long-term debt was classified as a Level 3 instrument.

NOTE 15 - NET INCOME PER SHARE

The following table sets forth the computation of basic and diluted net income per share (in thousands, except share and per share data):

 
Year Ended December 31,
 
2014
 
2013
 
2012
Numerator:
 
 
 
 
 
Net income
$
39,043

 
$
7,096

 
$
12,407

Denominator:
 
 
 

 
 

Denominator for basic net income per share - weighted average common stock outstanding
41,558

 
40,799

 
40,927

Effect of dilutive securities:
 
 
 

 
 

Stock options and awards
598

 
1,187

 
957

Denominator for diluted net income per share - weighted average shares outstanding - diluted
42,156

 
41,986

 
41,884

Basic net income per share
$
0.94

 
$
0.17

 
$
0.30

Diluted net income per share
$
0.93

 
$
0.17

 
$
0.30


Restricted stock awards (RSAs) and stock options to acquire 442,000 , 381,000 , and 364,000 shares for the years ended December 31, 2014 , 2013 and 2012 , respectively, were excluded from the computations of diluted earnings per share because the effect of including the RSAs and stock options would have been anti-dilutive.

NOTE 16 - STOCKHOLDERS' EQUITY, EMPLOYEE BENEFIT PLANS AND STOCK-BASED COMPENSATION

Preferred Stock

The Company’s Board of Directors has the authority to issue up to 5,000,000 shares of preferred stock in one or more series and to fix the rights, preferences, privileges and restrictions thereof, including dividend rights, dividend rates, conversion rights, voting rights, terms of redemption, redemption prices, liquidation preferences and the number of shares constituting any series or the designation of such series, without further vote or action by the Company’s stockholders.  At December 31, 2014 and 2013 , there was no preferred stock issued and outstanding.

Stock-Based Compensation

At December 31, 2014 , the Company has one stock-based employee compensation plan pursuant to which grants may be made: the Second Amended and Restated 2006 Equity Incentive Plan (the “Equity Incentive Plan”) which was approved at the Company’s Annual Meeting on May 25, 2006 and amended at the Company’s Annual Meetings on each of May 21, 2009 and May 17, 2012.  No further grants shall be made pursuant to the 2000 Long-Term Incentive Plan (the “2000 Plan”), the 2001 Broad-Based Stock Option Plan (the “2001 Plan”) or the 2006 Management Stock Purchase Plan (the “MSPP”), which was terminated effective March 7, 2012. In addition, at December 31, 2014 , the Company has one plan pursuant to which discount purchases may be made by the participants in such plan: the Luminex Corporation Employee Stock Purchase Plan (the "ESPP"), which was approved at the Company's Annual Meeting on May 17, 2012.
 

81


Equity Incentive Plans

Under the Company’s Equity Incentive Plan and the 2000 Plan, certain employees, consultants and non-employee directors have been granted RSAs, restricted share units (RSUs) and options to purchase shares of common stock.  The options, RSAs, and RSUs generally vest in installments over a three to five year period, and the options expire either five or ten years after the date of grant.  Under the Equity Incentive Plan, certain employees, directors of, and consultants to the Company are eligible to be granted RSAs, RSUs, and options to purchase common stock. The ESPP provides for the granting of rights to certain employees of the Company to defer an elected percentage, up to 15% , of their base salary through the purchase of the Company's common stock, discounted by 15% . As of December 31, 2014 , there were approximately 2.6 million shares authorized for future issuance under the Company’s Equity Incentive Plan and approximately 319,000 shares eligible for purchase pursuant to the terms and conditions of the ESPP as more fully described below.

The Equity Incentive Plan, the ESPP and the 2000 Plan are administered by the Compensation Committee of the Board of Directors.  The Compensation Committee has the authority to determine the terms and conditions under which awards will be granted from the Equity Incentive Plan, including the number of shares, vesting schedule and term, as applicable. Any option award exercise prices, as set forth in the Equity Incentive Plan, will be equal to the fair market value on the date of grant.  Under certain circumstances, the Company may repurchase previously granted RSAs and RSUs.

On March 25, 2011, March 7, 2012 and March 19, 2013 the Compensation Committee of the Board adopted the Luminex Corporation 2011 Long Term Incentive Plan (the “2011 LTIP”), the Luminex Corporation 2012 Long Term Incentive Plan (the "2012 LTIP"), and the 2013 Long Term Incentive Plan (the "2013 LTIP"), respectively.  Awards under all of the LTIP plans were granted by the Compensation Committee in the form of RSUs and are to be treated as Performance Awards under the Equity Incentive Plan.  Grants of RSUs under the LTIP plans shall initially be unvested and represent the maximum amount of shares that participants may receive under the plan, assuming achievement of the maximum level of performance goals established for the grant, and subject to adjustment for certain transactions and other extraordinary or non-recurring events that may affect Luminex or its financial performance.   

On March 25, 2011, the Company’s former chief executive officer (CEO) was granted an award for an unvested RSU under the 2011 LTIP for up to $2,200,000 worth of shares (grant date fair value) of Luminex common stock, and the Company’s chief financial officer (CFO) was granted an award for an unvested RSU under the 2011 LTIP for up to $825,000 worth of shares (grant date fair value) of Luminex common stock.  The actual maximum number of shares of 119,304 shares and 44,740 shares for the former CEO and CFO, respectively, was determined on March 25, 2011, based upon the closing price of the stock on that date.  Performance goals under the grants are based on the following components, with the following weights given to each: 50% on the trading price of Luminex common stock at the end of the performance period and 50% on Luminex’s total income from operations per diluted share at the end of the performance period.
 
The 2011 LTIP performance goals are as described below:

Partial or complete achievement of the trading price goal is dependent upon the average closing price of Luminex’s common stock for the twenty consecutive trading days ending December 31, 2013, inclusive, subject to certain adjustments as described in the 2011 LTIP. There is a range of trading price targets as follows: a minimum threshold of $28.50 per share, a target of $32.38 per share, and a maximum goal of $51.42 per share. No shares were earned for this goal under the 2011 LTIP.

Partial or complete achievement of the income from operations goal is dependent upon the total income from operations per diluted share for the year ended December 31, 2013, as further described in the 2011 LTIP. Total income from operations means Luminex’s income from operations as reflected on the Company’s Consolidated Statement of Comprehensive Operations for the year ended December 31, 2013, as further described in the 2011 LTIP. There is a range of targets as follows: a minimum threshold of $0.73 per share, a target of $0.81 per share, and a maximum goal of $1.19 per share. The final determination and certification of the shares earned for this goal was made by the Compensation Committee of the Board of Directors on February 26, 2014 resulting in no shares earned for this goal under the 2011 LTIP.


82


On March 7, 2012, the Company’s former CEO was granted an award for an unvested RSU under the 2012 LTIP for up to $2,200,000 worth of shares (grant date fair value) of Luminex common stock, and the Company’s CFO was granted an award for an unvested RSU under the 2012 LTIP for up to $550,000 worth of shares (grant date fair value) of Luminex common stock.  The actual maximum number of shares of 98,434 shares and 24,608 shares for the former CEO and CFO, respectively, was determined on March 7, 2012, based upon the closing price of the stock on that date.  Performance goals under the grants are based on the following components, with the following weights given to each: 50% on the trading price of Luminex common stock at the end of the performance period and 50% on Luminex’s total income from operations at the end of the performance period.
 
The 2012 LTIP performance goals are as described below:

Partial or complete achievement of the trading price goal is dependent upon the average closing price of Luminex’s common stock for the twenty consecutive trading days ending December 31, 2014, inclusive, subject to certain adjustments as described in the 2012 LTIP. There is a range of trading price targets as follows: a minimum threshold of $29.29 per share, a target of $32.54 per share, and a maximum goal of $39.75 per share. No shares were earned for this goal under the 2012 LTIP.

Partial or complete achievement of the total income from operations goal is dependent upon the total income from operations for the year ended December 31, 2014, as further described in the 2012 LTIP. Total income from operations means Luminex’s income from operations as reflected on the Company’s Consolidated Statement of Comprehensive Operations for the year ended December 31, 2014, as further described in the 2012 LTIP. There is a range of targets as follows: a minimum threshold of $58,663,000 , a target of $67,286,000 , and a maximum goal of $85,831,000 . The final determination and certification of the shares earned for this goal will be made by the Compensation Committee of the Board of Directors after the filing of this Annual Report on From 10-K, but we expect no shares will be earned for this goal under the 2012 LTIP.

On March 19, 2013, the Company’s former CEO was granted an award for an unvested RSU under the 2013 LTIP for up to $1,200,000 worth of shares (grant date fair value) of Luminex common stock, and the Company’s CFO was granted an award for an unvested RSU under the 2013 LTIP for up to $300,000 worth of shares (grant date fair value) of Luminex common stock.  The actual maximum number of shares of 71,727 shares and 17,931 shares for the former CEO and CFO, respectively, was determined on March 19, 2013, based upon the closing price of the stock on that date.  The performance goal under the grants is based on Luminex’s fully diluted earnings per share at the end of the performance period (Adjusted EPS Goal). Partial or complete achievement of the Adjusted EPS Goal is dependent upon Luminex's fully diluted earnings per share for the year ended December 31, 2015, as further described in the 2013 LTIP. There is a range of targets as follows: a minimum threshold of $1.06 per share, a target of $1.18 per share, and a maximum goal of $1.36 per share.

In the event that a participant achieves less than the maximum level of the performance goal, the total number of shares represented by such RSU shall be reduced to reflect where actual performance lies in the range of performance goals and weighted aggregate corresponding payout opportunities established for the grant. Calculation of shares between threshold and maximum performance shall be determined based on straight-line interpolation.

Accounting for Stock Compensation

Stock-based compensation costs are generally based on the fair value calculated from the Black-Scholes option-pricing model on the date of grant for stock options and market value on the date of grant for RSAs.  The fair values of stock and stock options are amortized as compensation expense on a straight-line basis over the vesting period of the grants.
 
In accordance with ASC 718 the Company evaluates the assumptions used in the Black-Scholes model at each grant date using a consistent methodology for computing expected volatility, expected term and risk-free rate of return. Calculation of expected volatility is based on historical volatility. The expected life is calculated using the contractual term of the options as well as an analysis of the Company’s historical exercises of stock options.  The estimate of the risk-free rate is based on the U.S. Treasury yield curve in effect at the time of grant. The Company has never paid cash dividends and does not currently intend to pay cash dividends, and thus has assumed a 0% dividend yield.  The assumptions used are summarized in the following table:

83


 
2014
 
2013
 
2012
Dividend yield
%
 
%
 
%
Expected volatility
0.5

 
0.5

 
0.5

Risk-free rate of return
1.8
%
 
1.2
%
 
1.2
%
Expected life
7 years

 
7 years

 
7 years

Weighted average fair value at grant date
$
10.75

 
$
8.79

 
$
7.78

As part of the requirements of ASC 718, the Company is required to estimate potential forfeitures of stock grants and adjust compensation cost recorded accordingly. The estimate of forfeitures is based on historical forfeiture performance and will be adjusted over the requisite service period to the extent that actual forfeitures differ, or are expected to differ, from such estimates. Changes in estimated forfeitures will be recognized through a cumulative catch-up adjustment in the period of evaluation and will also impact the amount of stock compensation expense to be recognized in future periods.

The Company’s stock option activity for the years ended December 31, 2012 , 2013 and 2014 is as follows:
Stock Options
Shares
(in thousands)
 
Weighted Average Exercise Price
 
Weighted Average Remaining Contractual Life
 
Aggregate Intrinsic Value (in thousands)
Outstanding at December 31, 2011
2,020

 
$
10.19

 
 
 
 

Granted
160

 
22.53

 
 
 
 
Exercised
(487
)
 
7.22

 
 
 
 

Cancelled or expired
(17
)
 
20.37

 
 
 
 
Outstanding at December 31, 2012
1,676

 
$
12.13

 
 
 
 

Granted
159

 
17.24

 
 
 
 
Exercised
(835
)
 
9.06

 
 
 
 

Cancelled or expired
(33
)
 
19.80

 
 
 
 
Outstanding at December 31, 2013
967

 
$
15.35

 
 
 
 

Granted
250

 
21.10

 
 
 
 
Exercised
(348
)
 
10.59

 
 
 
 

Cancelled or expired
(44
)
 
20.17

 
 
 
 
Outstanding at December 31, 2014
825

 
$
18.84

 
6.06
 
$
1,047

Vested at December 31, 2014 and expected to vest
817

 
$
18.82

 
6.05
 
$
1,046

Exercisable at December 31, 2014
445

 
$
17.57

 
5.12
 
$
910


During the years ended December 31, 2014 , 2013 and 2012 , the total exercise intrinsic value of stock options exercised was $2.8 million , $8.7 million and $6.9 million , respectively, and the total fair value of stock options that vested was $2.4 million , $2.5 million and $2.0 million , respectively.  Exercise intrinsic value represents the difference between the market value of the Company's common stock at the time of exercise and the price paid by the employee to exercise the options. The Company had $3.2 million of total unrecognized compensation costs related to stock options at December 31, 2014 that are expected to be recognized over a weighted-average period of 2.8 years.


84


The Company’s restricted share activity for the years ended December 31, 2012 , 2013 and 2014 is as follows:
Restricted Stock Awards
Shares
(in thousands)
 
Weighted Average Grant Price
Non-vested at December 31, 2011
903

 
$
17.13

Granted
329

 
22.50

Vested
(339
)
 
16.75

Cancelled or expired
(75
)
 
18.59

Non-vested at December 31, 2012
818

 
$
19.32

Granted
354

 
17.28

Vested
(267
)
 
18.83

Cancelled or expired
(79
)
 
19.15

Non-vested at December 31, 2013
826

 
$
18.62

Granted
637

 
20.21

Vested
(286
)
 
18.09

Cancelled or expired
(78
)
 
19.27

Non-vested at December 31, 2014
1,098

 
$
19.63


Restricted Stock Units
Shares
(in thousands)
 
Weighted Average Remaining Contractual Life
 
Aggregate Intrinsic Value (in thousands)
Non-vested at December 31, 2011
827

 
 
 
 
Granted
246

 
 
 
 
Vested
(80
)
 
 
 
 
Cancelled or expired
(118
)
 
 
 
 
Non-vested at December 31, 2012
875

 
 
 
 
Granted
199

 
 
 
 
Vested
(79
)
 
 
 
 
Cancelled or expired
(162
)
 
 
 
 
Non-vested at December 31, 2013
833

 
 
 
 
Granted
139

 
 
 
 
Vested
(74
)
 
 
 
 
Cancelled or expired
(241
)
 
 
 
 
Non-vested at December 31, 2014
658

 
1.58
 
$
12,336

Vested at December 31, 2014 and expected to vest
376

 
1.56
 
$
6,312

Exercisable at December 31, 2014
40

 
0.00
 
$
741


As of December 31, 2014 , there was $22.3 million of unrecognized compensation cost related to RSAs and RSUs.  That cost is expected to be recognized over a weighted average-period of 2.6 years .  The total fair value of restricted shares vested during the year ended December 31, 2014 , 2013 and 2012 was $6.5 million , $7.2 million , and $8.3 million , respectively.

RSAs and RSUs may be granted at the discretion of the Board of Directors under the Equity Incentive Plan in connection with the hiring or retention of key employees and are subject to certain conditions. Restrictions expire at certain dates after the grant date in accordance with specific provisions in the applicable agreement. During the year ended December 31, 2014 , the Company awarded 637,184 shares of restricted stock awards, which had a fair value at the date of grant ranging from $16.82 $21.10 . During the year ended December 31, 2013 , the Company awarded 353,537 shares of restricted stock awards, which had a fair value at the date of grant ranging from $16.18 $18.11 . During the year ended December 31, 2012 , the Company awarded 329,096 shares of restricted stock awards, which had a fair value at the date of grant ranging from $17.26 $22.71 .  During the year ended December 31, 2014 , the Company awarded 139,417 shares of restricted stock units, which had a fair value at the date of grant ranging from $17.91 $20.14 .  During the year ended December 31, 2013 , the Company awarded 199,051 shares of restricted stock units, which had a fair value at the date of grant ranging from $16.73 $20.51 .  During the year ended December 31, 2012 , the Company awarded 246,205 shares of restricted stock units, which had a fair value at the date of grant ranging from $16.16 $23.82 . Compensation under these restricted stock awards and units was charged to expense over the restriction period and amounted to $8.1 million , $7.5 million , and $8.4 million in 2014 , 2013 and 2012 , respectively.

85



There were no significant stock compensation costs capitalized into assets as of December 31, 2014 , 2013 or 2012 .

The Company received $3.7 million , $7.6 million , and $3.5 million for the exercise of stock options during the years ended December 31, 2014 , 2013 and 2012 , respectively.  Cash was not used to settle any equity instruments previously granted. The Company issued shares pursuant to grants relating to each of the Equity Incentive Plan, 2000 Plan and 2001 Plan from reserves upon the exercise of stock options and vesting of RSAs.

Employee Savings Plans and Other Benefit Plans

Effective January 1, 2001, the Company began sponsoring a retirement plan authorized by section 401(k) of the Internal Revenue Code for the Company’s employees in the United States. In accordance with the 401(k) plan, all employees are eligible to participate in the plan on the first day of the month following the commencement of full time employment. For 2014 , 2013 and 2012 , each employee could contribute a percentage of compensation up to a maximum of $17,500 , $17,500 , and $17,000 per year, respectively, with the Company matching 50% of each employee’s contributions.  Effective January 1, 2010, the Company began contributing to a deferred profit sharing plan for its Canadian employees.  All Canadian employees are eligible to participate in the plan.  The Company’s contributions to these plans for 2014 , 2013 and 2012 were $2.5 million , $2.4 million , and $2.1 million , respectively.

Several of the Company’s Netherlands employees are covered by a defined benefit plan.  The cost and total liability to the Company is not significant.  Effective January 1, 2011, all of the Company’s new hires in the Netherlands are eligible to participate in a defined contribution plan.

Employee Stock Purchase Plan

In May 2012, the Company's stockholders approved the ESPP, which provides for the granting of up to 500,000 shares of the Company's common stock to eligible employees. The ESPP period is semi-annual and allows participants to purchase the Company's common stock at 85% of the lesser of (i) the closing market value per share of the common stock on the first trading date of the option period or (ii) the closing market value per share of the common stock on the last trading date of the option period. The first plan option period began on July 1, 2012. As of December 31, 2014, 2013 and 2012, 181,401 shares, 106,522 shares and 35,296 shares, respectively had been issued out of the ESPP. The related stock-based compensation expense was $0.4 million , $0.4 million and $0.2 million for 2014, 2013 and 2012, respectively.

The Company uses the Black-Scholes model to estimate the fair value of shares to be issued as of the grant date using the following weighted average assumptions:  
 
2014
Assumptions:
 
Risk-free interest rates
0.07% to 0.09%

Expected life
0.5 years

Expected volatility
0.49

Dividend yield
%
 
The following are the stock-based compensation costs recognized in the Company’s consolidated statements of comprehensive income (in thousands):
 
Year Ended December 31,
 
2014
 
2013
 
2012
Cost of revenue
$
981

 
$
856

 
$
947

Research and development
2,573

 
2,553

 
2,034

Selling, general and administrative
5,994

 
5,812

 
6,934

Stock-based compensation costs reflected in net income
$
9,548

 
$
9,221

 
$
9,915



86


Reserved Shares of Common Stock

At December 31, 2014 and 2013 , the Company had reserved 4,790,386 and 6,034,452 shares of common stock, respectively, for the issuance of common stock upon the exercise of options, issuance of RSAs, RSUs, purchase of common stock pursuant to the ESPP or other awards issued pursuant to the Company’s equity plans and arrangements. The following table summarizes the reserved shares by plan as of December 31, 2014 :

 
Options Outstanding
 
Shares Available for Future Issuance
 
Total Shares Reserved
2000 Plan
15,000

 

 
15,000

Equity Incentive Plan
1,870,592

 
2,586,195

 
4,456,787

ESPP

 
318,599

 
318,599

 
1,885,592

 
2,904,794

 
4,790,386


NOTE 17 - COMMITMENTS AND CONTINGENCIES

Lease Arrangements

The Company has operating leases related primarily to its office and manufacturing facilities with original lease periods of up to ten years. Rental and lease expense for these operating leases for the years 2014 , 2013 and 2012 totaled approximately $4.5 million , $5.1 million , and $5.5 million , respectively.

In the fourth quarter of 2012, the Company ceased using the Hayward, California facility, whose operating lease commitment was acquired under the GenturaDx acquisition in July 2012. The Company has accrued a liability based upon the estimated fair value of the costs that will continue to be incurred under the lease, including an estimate of sublease rental income.
Minimum annual lease commitments as of December 31, 2014 under non-cancellable leases for each of the next five years and in the aggregate were as follows (in thousands):

2015
$
3,744

2016
3,808

2017
3,608

2018
3,493

2019
3,460

Thereafter
4,910

Total
$
23,023


These non-cancellable lease commitments related to facilities include certain rent escalation provisions which have been included in the minimum annual rental commitments shown above.  These amounts are recorded to expense on a straight-line basis over the life of the lease.  In addition, some of the Company’s leases contain options to renew the lease for five to ten years at the then prevailing market rental rate, right of first refusal to lease additional space that becomes available, or leasehold improvement incentives.

Non-Cancellable Purchase Commitments

As of December 31, 2014 the Company had approximately $20.1 million in purchase commitments primarily with several of its inventory suppliers as well as other operating commitments. Certain of our supply agreements require purchase and delivery of minimum amounts of components through 2018, and purchases under these arrangements were $2.4 million , $1.8 million and $2.1 million for the years ended December 31, 2014, 2013 and 2012, respectively.


87


Employment Contracts

The Company has entered into employment contracts with certain of its key executives.  Generally, certain amounts may become payable in the event the Company terminates the executives’ employment without cause or the executive resigns for good reason.

Legal Proceedings

On August 30, 2012 Abbott Laboratories (Abbott) was named as a defendant in the complaint filed by ENZO Life Sciences, Inc. (ENZO) in U.S. District Court in Delaware for alleged infringement of its US Patent 7,064,197 as a result of Abbott's distribution of the Company's xTAG Respiratory Viral Panel.  The Company and Abbott have entered into an agreement requiring Luminex to defend and indemnify Abbott for any alleged infringement resulting from its distribution of the Respiratory Viral Panel. The complaint seeks unspecified monetary damages and injunctive relief.  Abbott filed an answer to the complaint on October 15, 2012.  On November 30, 2012, the Company intervened in the lawsuit. On January 2, 2013 ENZO filed additional claims against the Company, alleging infringement of US Patent 7,064,197 resulting from the Company's sale of its xTAG, FlexScript LDA, SelecTAG, and xMAP Salmonella Serotyping Assay products and alleging infringement of US Patent 8,097,405 resulting from the Company's sale of Multicode products.  The Company filed an answer to ENZO's additional claims on January 28, 2013.  On October 2, 2013 ENZO filed additional claims against the Company, alleging infringement of U.S. Patent 6,992,180 resulting from the Company’s sale of Multicode products.  The Company filed an answer to ENZO’s additional claims on October 21, 2013. A trial date has not been set. The parties to the lawsuit have engaged in the discovery process.

On November 1, 2013 Irori Technologies, Inc. filed a complaint against the Company in U.S. District Court in the Southern District of California, alleging infringement of its U.S. Patent numbers 6,372,428, 6,416,714, and 6,352,854 resulting from the Company’s sale of its xMAP and xTAG based products.  The complaint seeks unspecified monetary damages and injunctive relief. The Company filed a motion to dismiss on January 9, 2014.  Irori filed its response to our motion to dismiss on February 7, 2014.  The matter is currently before the court.  On December 11, 2014, the USPTO's Patent Trial and Appeal Board instituted review on all five inter partes review petitions that Luminex filed.  Irori’s responses to the petitions are due February 26, 2015, and oral argument (if requested by either party) is scheduled for August 5, 2015.

When and if it appears probable in management's judgment, and based upon consultation with outside counsel, that the Company will incur monetary damages or other costs in connection with any claims or proceedings, and such costs can be reasonably estimated, the Company records the estimated liability in the financial statements.  If only a range of estimated losses can be estimated, the Company records an amount within the range that, in management's judgment, reflects the most likely outcome; if none of the estimates within that range is a better estimate than any other amount, the Company records the liability at the low end of the range of estimates. Any such accrual would be charged to expense in the appropriate period. The Company discloses significant contingencies when the loss is not probable and/or the amount of the loss is not estimable, when the Company believes there is at least a reasonable possibility that a loss has been incurred. The Company recognizes costs associated with legal proceedings in the period in which the services were provided. There can be no assurance that the Company will successfully defend these suits or that a judgment against the Company would not materially adversely affect operating results.

Other Matters

In January 2013, the Company finalized the termination of its molecular diagnostics distribution agreements and an expense of $7.0 million was recorded in selling, general and administrative expenses in the first quarter of 2013. All payments were made in the second quarter of 2013.

NOTE 18 - GUARANTEES

The terms and conditions of the Company’s development and supply and license agreements with its strategic partners generally provide for a limited indemnification of such partners, arising from the sale of Luminex systems and consumables, against losses, expenses and liabilities resulting from third-party claims based on an alleged infringement on an intellectual property right of such third party. The terms of such indemnification provisions generally limit the scope of and remedies for such indemnification obligations to a multiple of amounts paid by such strategic partner to Luminex during the previous annual period(s). To date, the Company has not had to reimburse any of its strategic partners for any losses arising from such indemnification obligations.

88



NOTE 19 – SEGMENT AND GEOGRAPHIC INFORMATION

During the fourth quarter of 2014, in conjunction with the appointment of our new CEO, the Company evaluated its historical reporting segments: the technology and strategic partnerships (TSP) segment and the assays and related products (ARP) segment. As a result of this evaluation and based upon how the new Chief Executive Officer as Chief Operating Decision Maker (“CODM”) and the Company's management team collectively is managing its business, management determined that the two former segments have become so integrated and interrelated that they no longer provide an accurate representation of the Company's current business when reported separately. Additionally, management has taken actions to consolidate sales and service functions. Effective with the fourth quarter of 2014, the Company no longer has two operating segments and, accordingly, will present the Company's business as one operating segment and one reporting unit. Accordingly, prior periods' information has been restated to conform to the current periods' presentation.

The table below provides information regarding product revenues and property and equipment, net from the Company’s sales to customers within the United States and in foreign countries for the years ended December 31 (in thousands):
 
Sales to Customers
 
Property and Equipment, net
 
2014
 
2013
 
2012
 
2014
 
2013
 
2012
Domestic
$
187,945

 
$
178,276

 
$
167,924

 
$
36,826

 
$
30,847

 
$
23,421

Foreign:
 

 
 

 
 

 
 

 
 

 
 

Europe
17,819

 
16,690

 
17,376

 
1,093

 
1,013

 
1,433

Asia
14,863

 
12,287

 
10,877

 
261

 
234

 
212

Canada
3,664

 
3,025

 
3,753

 
1,746

 
640

 
888

Other
2,692

 
3,145

 
2,652

 
19

 
59

 
275

 
$
226,983

 
$
213,423

 
$
202,582

 
$
39,945

 
$
32,793

 
$
26,229


The Company's aggregate foreign currency transaction losses of $16,000 , $385,000 and $215,000 were included in determining the consolidated results for the years ended December 31, 2014 , 2013 and 2012 , respectively.

NOTE 20 - RECENT ACCOUNTING PRONOUNCEMENTS

In April 2014, the FASB amended guidance to clarify the accounting for disposals of groups of assets and business units. The amendments alter the definition of a discontinued operation to cover only asset disposals that are a strategic shift with a major effect on an entity's operations and finances. For the Company, the changes should be applied in fiscal years that start on December 15, 2014, or later, but the changes can be applied ahead of the effective date for asset disposals that have not been reported in a set of financial statements. Management applied this new guidance for the automated punching group and the related closure of the Brisbane, Australia manufacturing facility in the third quarter of 2014.

In May 2014, the FASB issued a new standard on revenue recognition which outlines a single comprehensive model to use in accounting for revenue arising from contracts with customers and supersedes most current revenue recognition guidance, including industry-specific guidance. The core principle of the revenue model is that an entity should recognize revenue to depict the transfer of promised goods or services to customers in an amount that reflects the consideration to which the entity expects to be entitled in exchange for those goods or services. The standard is designed to create greater comparability for financial statement users across industries and jurisdictions and also requires enhanced disclosures. The guidance is effective for fiscal years, and interim periods within those years, beginning after December 15, 2016. Early adoption is not permitted. The Company is currently evaluating the impact of the adoption of this standard on its consolidated financial statements.

89


NOTE 21 - SELECTED QUARTERLY RESULTS (UNAUDITED)

The following table sets forth certain quarterly financial data for the periods indicated (in thousands, except per share data):
 
Quarter Ended
 
March 31,
2014
 
June 30,
2014
 
September 30,
2014
 
December 31,
2014
Revenue
$
56,561

 
$
55,632

 
$
56,684

 
$
58,106

Gross profit
39,954

 
38,147

 
39,010

 
42,741

Income from operations
8,185

 
4,771

 
4,996

 
10,185

Net income (1)
5,966

 
4,725

 
5,550

 
22,802

Basic income per common share
0.14

 
0.11

 
0.13

 
0.55

Diluted income per common share
0.14

 
0.11

 
0.13

 
0.54

 
 
 
 
 
 
 
 
 
Quarter Ended
 
March 31,
2013
 
June 30,
2013
 
September 30,
2013
 
December 31,
2013
Revenue
$
53,200

 
$
54,287

 
$
50,780

 
$
55,156

Gross profit
37,957

 
38,057

 
30,781

 
36,831

(Loss) income from operations (2), (3)
(1,552
)
 
5,041

 
(4,194
)
 
5,472

Net (loss) income (2), (4)
(2,511
)
 
3,695

 
796

 
5,116

Basic (loss) income per common share
(0.06
)
 
0.09

 
0.02

 
0.12

Diluted (loss) income per common share
(0.06
)
 
0.09

 
0.02

 
0.12


(1) Net income in the fourth quarter of 2014 included an income tax benefit from the release of a portion of the valuation allowance on deferred tax assets in Canada and the recognition of a tax benefit related to intercompany profits on sales of assets for which the assets had not been disposed of as of December 31, 2014. See Note 13 – Income Taxes.

(2) Loss from operations and net loss in the first quarter of 2013 included a $7.0 million charge associated with the termination of the Company's prior molecular diagnostic distribution agreements.

(3) Loss from operations in the third quarter of 2013 included an expense for the full allowance against accounts receivable balances related to the bankruptcy of a customer totaling $3.9 million and restructuring charges of $4.3 million .

(4) Net income in the third quarter of 2013 included a $5.4 million gain on the sale of a minority interest in a private company and an adjustment of the fair value of the Company's contingent consideration liability to $0 , which was established as part of the GenturaDx acquisition.

See Item 7. Management's Discussion and Analysis of Financial Condition and Results of Operations for further discussion.

90


ITEM 9.  CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE

None.

ITEM 9A. CONTROLS AND PROCEDURES
 
Evaluation of Disclosure Controls and Procedures

We maintain disclosure controls and procedures, as defined in Rule 13a-15(e) promulgated under the Securities Exchange Act of 1934 (Exchange Act), which are designed to ensure that information required to be disclosed by us in the reports that we file or submit under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Securities and Exchange Commission’s rules and forms and that such information is accumulated and communicated to the Company’s management, including the Company’s Chief Executive Officer and Chief Financial Officer, as appropriate, to allow timely decisions regarding required disclosure.  We carried out an evaluation, under the supervision and with the participation of the Company’s management, including the Company’s Chief Executive Officer and Chief Financial Officer, of the effectiveness of the design and operation of the Company’s disclosure controls and procedures as of the end of the period covered by this report.  Based on the evaluation and criteria of these disclosure controls and procedures, the Chief Executive Officer and Chief Financial Officer concluded that the Company’s disclosure controls and procedures were effective.

Management’s Report on Internal Control Over Financial Reporting

Our management is responsible for establishing and maintaining adequate internal control over financial reporting, as such term is defined in Exchange Act Rules 13a-15(f) and 15d-15(f). Under the supervision and with the participation of our management, including our Chief Executive Officer and Chief Financial Officer, we conducted an evaluation of the effectiveness of our internal control over financial reporting as of December 31, 2014 based on the 1992 framework in Internal Control—Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (COSO). Based on that evaluation, our management concluded that our internal control over financial reporting was effective as of December 31, 2014 . Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements.  Projections of any evaluation of effectiveness to future periods are subject to the risks that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.

Our independent registered public accounting firm, Ernst & Young LLP, has issued a report on their assessment of the effectiveness of our internal control over financial reporting, which is provided at Item 8, page 56.

Changes in Internal Control Over Financial Reporting

There were no changes in our internal control over financial reporting identified in connection with the evaluation required by Exchange Act Rule 13a-15(d) during the fourth quarter of 2014 that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.

ITEM 9B.  OTHER INFORMATION

None.

91



PART III

ITEM 10.  DIRECTORS, EXECUTIVE OFFICERS AND CORPORATE GOVERNANCE

The information required by this Item concerning our directors, audit committee, and audit committee financial experts, code of ethics and compliance with Section 16(a) of the Exchange Act is incorporated by reference to information under the captions “Proposal 1 - Election of Class III Directors”, “Corporate Governance” and “Section 16(a) Beneficial Ownership Reporting Compliance” in our definitive proxy statement for our 2015 Annual Meeting of Stockholders to be held on or about May 14, 2015 (Proxy Statement). It is anticipated that our Proxy Statement will be filed with the Securities and Exchange Commission on or about March 30, 2015.

Pursuant to General Instruction G(3), certain information with respect to our executive officers is set forth under the caption “Executive Officers of the Registrant as of February 23, 2015 " in Item 1 of this Annual Report on Form 10-K.

ITEM 11.  EXECUTIVE COMPENSATION

Information required by this Item is incorporated by reference to the section of the Proxy Statement entitled “Executive and Director Compensation.”
 
ITEM 12.  SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED STOCKHOLDER MATTERS
 
Information required by this Item is incorporated by reference to the section of the Proxy Statement entitled “Security Ownership of Certain Beneficial Owners and Management.”

Securities Authorized for Issuance Under Equity Compensation Plans
 
The following table sets forth, as of December 31, 2014 , certain information with respect to shares of our common stock authorized for issuance under our equity compensation plans.

Plan Category
Number of Securities to be Issued Upon Exercise of Outstanding Options
 
Weighted-Average Exercise Price of Outstanding Options
 
Number of Securities Remaining Available for Future Issuance Under Equity Compensation Plans (Excluding Securities Reflected in Column (A))
 
(A)
 
(B)
 
(C)
Equity compensation plans approved by security holders
1,885,592

 
$
8.24

 
2,904,794

Equity compensation plans not approved by security holders

 
$

 

Total
1,885,592

 
 

 
2,904,794


ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS, AND DIRECTOR INDEPENDENCE

Information required by this Item is incorporated by reference to the sections of the Proxy Statement entitled “Certain Relationships and Related Party Transactions” and “Corporate Governance.”

ITEM 14.  PRINCIPAL ACCOUNTING FEES AND SERVICES

Information required by this Item is incorporated by reference to the section of the Proxy Statement entitled “Ratification of Appointment of Independent Registered Public Accounting Firm.”

92


PART IV

ITEM 15.  EXHIBITS, FINANCIAL STATEMENT SCHEDULES

(a)
The following documents are filed as a part of this Annual Report on Form 10-K:

(1)
Financial Statements:

The Financial Statements required by this item are submitted in Part II, Item 8 of this report.

(2)
Financial Statement Schedules:

All schedules are omitted because they are not applicable or the required information is shown in the Financial Statements or in the notes thereto.

(3)
Exhibits:
EXHIBIT
NUMBER
 
 
DESCRIPTION OF DOCUMENT
 
 
 
2.1
 
Agreement and Plan of Merger, dated July 9, 2012, by and among Luminex Corporation, Grouper Merger Sub, Inc., GenturaDx, Inc. and the Seller Representative (Previously filed as an Exhibit to the Company's Current Report on Form 8-K, filed on July 12, 2012).*
 
 
 
3.1
 
Restated Certificate of Incorporation of the Company (Previously filed as an Exhibit to the Company's Registration Statement on Form S-1 (File No. 333-96317), filed February 7, 2000, as amended).
 
 
 
3.2
 
Amended and Restated Bylaws of the Company (Previously filed as an Exhibit to the Company's Current Report on Form 8-K (File No. 000-30109), filed September 16, 2008).
 
 
 
10.1#
 
2000 Long-Term Incentive Plan of the Company, as amended (Previously filed as an Exhibit to the Company's Quarterly Report on Form 10-Q (File No. 000-30109) for the quarterly period ended March 31, 2002).
 
 
 
10.2#
 
Form of Stock Option Award Agreement for the 2000 Long-Term Incentive Plan (Previously filed as an Exhibit to the Company's Registration Statement on Form S-1 (File No. 333-96317), filed February 7, 2000, as amended).
 
 
 
10.3#
 
Form of Indemnification Agreement between the Company and each of the directors and executive officers of the Company (Previously filed as an Exhibit to the Company's Current Report on Form 8-K (File No. 000-30109), filed September 16, 2008).
 
 
 
10.4
 
Lease Agreement between Aetna Life Insurance Company, as Landlord, and Luminex Corporation, as Tenant, dated October 19, 2001 (Previously filed as an Exhibit to the Company's Quarterly Report on Form 10-Q (File No. 000-30109) for the quarterly period ended September 30, 2001).
 
 
 
10.5
 
First Amendment to Lease Agreement between Aetna Life Insurance Company, as Landlord, and Luminex Corporation, as Tenant, dated July 25, 2002 (Previously filed as an Exhibit to the Company's Quarterly Report on Form 10-Q (File No. 000-30109) for the quarterly period ended June 30, 2002).
 
 
 
10.6
 
Lease Amendment between McNeil 4 & 5 Investors, LP, as Landlord, and Luminex Corporation, as Tenant, dated January 27, 2003 (Previously filed as an Exhibit to the Company's Annual Report on Form 10-K (File No. 000-30109) for the fiscal year ended December 31, 2002).
 
 
 
10.7
 
Lease Agreement between PS Business Parks, L.P., as Landlord, and Luminex Corporation, as Tenant, dated September 30, 2014.
 
 
 
10.8#
 
Employment Agreement, effective as of October 1, 2003, by and between Luminex Corporation and Harriss T. Currie (Previously filed as an Exhibit to the Company's Annual Report on Form 10-K (File No. 000-30109) for the fiscal year ended December 31, 2003).
 
 
 
10.9#
 
Employment Agreement effective as of October 1, 2003, by and between Luminex Corporation and David S. Reiter (Previously filed as an Exhibit to the Company's Annual Report on Form 10-K (File No. 000-30109) for the fiscal year ended December 31, 2003).
 
 
 
10.10#
 
Employment Agreement effective as of May 15, 2004, by and between Luminex Corporation and Patrick J. Balthrop (Previously filed as an Exhibit to the Company's Current Report on Form 8-K (File No. 000-30109), filed May 18, 2004).
 
 
 

93


EXHIBIT
NUMBER
 
 
DESCRIPTION OF DOCUMENT
10.11#
 
Employment Agreement effective as of May 23, 2005, by and between Luminex Corporation and Russell W. Bradley (Previously filed as an Exhibit to the Company's Current Report on Form 8-K (File No. 000-30109), filed May 25, 2005).
 
 
 
10.12#
 
Form of Restricted Stock Agreement for the 2000 Long-Term Incentive Plan and 2001 Broad-Based Stock Option Plan (Previously filed as an Exhibit to the Company's Quarterly Report on Form 10-Q (File No. 000-30109) for the quarterly period ended September 30, 2004).
 
 
 
10.13#
 
Form of Amendment to Executive Employment Agreements (Previously filed as an Exhibit to the Company's Annual Report on Form 10-K (File No. 000-30109) for the fiscal year ended December 31, 2005).
 
 
 
10.14#
 
Luminex Corporation Amended and Restated 2006 Equity Incentive Plan (Previously filed as an Exhibit to the Company's Current Report on Form 8-K (File No. 000-30109), filed May 21, 2009).
 
 
 
10.15#
 
Form of Non-Qualified Stock Option Agreement for the Amended and Restated 2006 Equity Incentive Plan (Previously filed as an Exhibit to the Company's Current Report on Form 8-K (File No. 000-30109), filed May 21, 2009).
 
 
 
10.16#
 
Form of Restricted Share Award Agreement for Officers & Employees for the Amended and Restated 2006 Equity Incentive Plan (Previously filed as an Exhibit to the Company's Current Report on Form 8-K (File No. 000-30109), filed May 21, 2009).
 
 
 
10.17#
 
Form of Restricted Share Award Agreement for Directors for the Amended and Restated 2006 Equity Incentive Plan (Previously filed as an Exhibit to the Company's Current Report on Form 8-K (File No. 000-30109), filed May 21, 2009).
 
 
 
10.18#
 
Form of Restricted Share Unit Agreement for Officers & Employees for the Amended and Restated 2006 Equity Incentive Plan (Previously filed as an Exhibit to the Company's Current Report on Form 8-K (File No. 000-30109), filed May 21, 2009).
 
 
 
10.19#
 
Form of Restricted Share Unit Agreement for Directors for the Amended and Restated 2006 Equity Incentive Plan (Previously filed as an Exhibit to the Company's Current Report on Form 8-K (File No. 000-30109), filed May 21, 2009).
 
 
 
10.20#
 
Employment Agreement effective as of March 1, 2007, by and between Luminex Corporation, Tm Bioscience and Jeremy Bridge-Cook (Previously filed as an Exhibit to the Company's Annual Report on Form 10-K (File No. 000-30109) for the fiscal year ended December 31, 2006).
 
 
 
10.21#
 
Amendment to Luminex Corporation Amended and Restated 2000 Long-Term Incentive Plan dated as of May 24, 2007 (Previously filed as an Exhibit to the Company's Quarterly Report on Form 10-Q (File No. 000-30109) for the quarterly period ended June 30, 2007).
 
 
10.22#
 
Luminex Corporation 2006 Equity Incentive Plan (Previously filed as an Exhibit to the Company's Proxy Statement (File No. 000-30109) for its Annual Meeting of Shareholders held on May 25, 2006).
 
 
 
10.23#
 
Form of Non-Qualified Stock Option Agreement for the 2006 Equity Incentive Plan (Previously filed as an Exhibit to the Company's Current Report on Form 8-K (File No. 000-30109), filed May 25, 2006).
 
 
 
10.24#
 
Form of Restricted Share Award Agreement for Officers & Employees for the 2006 Equity Incentive Plan (Previously filed as an Exhibit to the Company's Current Report on Form 8-K (File No. 000-30109), filed May 25, 2006).
 
 
 
10.25#
 
Form of Restricted Share Award Agreement for Directors for the 2006 Equity Incentive Plan (Previously filed as an Exhibit to the Company's Current Report on Form 8-K (File No. 000-30109), filed May 25, 2006).
 
 
 
10.26#
 
First Amendment to Employment Agreement, effective as of March 30, 2006, by and between Luminex Corporation and Russell W. Bradley.
 
 
 
10.27#
 
Form of Restricted Share Unit Agreement for the 2006 Equity Incentive Plan (Previously filed as an Exhibit to the Company's Annual Report on Form 10-K (File No. 000-30109) for the fiscal year ended December 31, 2006).
 
 
 
10.28#
 
Form of Amendments to Equity Award Agreements (Previously filed as an Exhibit to the Company's Quarterly Report on Form 10-Q (File No. 000-30109) for the quarterly period ended June 30, 2007).
 
 
 
10.29#
 
Management Incentive Plan (Previously filed as an Exhibit to the Company's Current Report on Form 8-K (File No. 000-30109), filed March 15, 2010).
 
 
 

94


EXHIBIT
NUMBER
 
 
DESCRIPTION OF DOCUMENT
10.30#
 
Luminex Corporation 2012 Long Term Incentive Plan (Previously filed as an Exhibit to the Company's Current Report on Form 8-K, filed March 13, 2012).
 
 
 
10.31#
 
Form of Restricted Share Unit Award Agreement for Awards under the Luminex Corporation 2012 Long Term Incentive Plan (Previously filed as an Exhibit to the Company's Current Report on Form 8-K, filed March 13, 2012).
 
 
 
10.32#
 
Luminex Corporation Second Amended and Restated 2006 Equity Incentive Plan (Previously filed as an Annex to the Company's Proxy Statement for its Annual Meeting of Stockholders held on May 17, 2012).
 
 
 
10.33#
 
Luminex Corporation Employee Stock Purchase Plan (Previously filed as an Annex to the Company's Proxy Statement for its Annual Meeting of Stockholders held on May 17, 2012).
 
 
 
10.34#
 
Form of Amendment to Employment Agreement, effective as of December 31, 2012, by and between Luminex Corporation and its Executives, (Previously filed as an Exhibit to the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 2012).
 
 
 
10.35#
 
Second Amendment to Employment Agreement, effective as of December 31, 2012, by and between Luminex Corporation and Patrick J. Balthrop (Previously filed as an Exhibit to the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2012).
 
 
 
10.36#
 
Luminex Corporation 2013 Long Term Incentive Plan (Previously filed as an Exhibit to the Company's Current Report on Form 8-K, filed March 25, 2013).
 
 
 
10.37#
 
Form of Restricted Share Unit Award Agreement for Awards under the Luminex Corporation 2013 Long Term Incentive Plan (Previously filed as an Exhibit to the Company's Current Report on Form 8-K, filed March 25, 2013).
 
 
 
10.38#
 
Consulting Agreement, dated October 14, 2014, between Luminex Corporation and Patrick J. Balthrop, Sr. (Previously filed as an Exhibit to the Company's Current Report on Form 8-K, filed October 20, 2014).
 
 
 
10.39#
 
Employment Agreement, dated October 14, 2014, between Luminex Corporation and Nachum Shamir (Previously filed as an Exhibit to the Company's Current Report on Form 8-K, filed October 20, 2014).
 
 
 
10.40#
 
Employment Agreement, dated August 14, 2012, by and between Luminex Corporation and Nancy M. Fairchild.
 
 
 
10.41#
 
Consulting Agreement, dated December 19, 2014, between Luminex Corporation and David S. Reiter (Previously filed as an Exhibit to the Company's Current Report on Form 8-K, filed December 27, 2014).
 
 
 
10.42#
 
Second Amendment to Employment Agreement, effective as of February 6, 2014, by and between Luminex Corporation and Nancy M. Fairchild.
 
 
 
10.43#
 
Third Amendment to Employment Agreement, effective as of January 1, 2015, by and between Luminex Corporation and Nancy M. Fairchild.
 
 
 
10.44#
 
Third Amendment to Employment Agreement, effective as of January 1, 2015, by and between Luminex Corporation and Russell W. Bradley.
 
 
 
10.45#
 
Omnibus Amendment to the Luminex Corporation Restricted Share Unit Award Agreements (2012 and 2013 LTIPs).
 
 
 
21.1
 
Subsidiaries of the Company.
 
 
 
23.1
 
Consent of Independent Registered Public Accounting Firm.
 
 
 
24.1
 
Power of Attorney (incorporated in the signature page of this report). 
 
 
 
31.1
 
Certification by CEO pursuant to Securities and Exchange Act Rules 13a-14(a) and 15d – 14(a), as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
 
 
 
31.2
 
Certification by CFO pursuant to Securities and Exchange Act Rules 13a-14(a) and 15d – 14(a), as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
 
 
 
32.1
 
Certification by CEO pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
 
 
 
32.2
 
Certification by CFO pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
 
 
 

95


EXHIBIT
NUMBER
 
 
DESCRIPTION OF DOCUMENT
101
 
The following materials from Luminex Corporation's Annual Report on Form 10-K for the year ended December 31, 2014, formatted in XBRL: (i) Condensed Consolidated Balance Sheets; (ii) Condensed Consolidated Statements of Comprehensive Income; (iii) Condensed Consolidated Statements of Cash Flows; and (iv) Notes to Condensed Consolidated Financial Statements.
 
 
 

#        Management contract or compensatory plan or arrangement.
*
Schedules, annexes and exhibits omitted pursuant to Item 601(b)(2) of Regulation S-K. Luminex agrees to furnish a supplemental copy of omitted schedules to the Securities and Exchange Commission upon request.

96


SIGNATURES

Pursuant to the requirements of the Section 13 or 15(d) of the Securities Exchange Act of 1934, the Registrant has duly caused this Report to be signed on its behalf by the undersigned, thereunto duly authorized.

 
LUMINEX CORPORATION

By:  /s/ Nachum Shamir   
Nachum Shamir
President and Chief Executive Officer
Date:  February 25, 2015


Pursuant to the requirements of the Securities Exchange Act of 1934, this Report has been signed below by the following persons on behalf of the Registrant and in the capacities and on the dates indicated.

POWER OF ATTORNEY

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Nachum Shamir and Harriss T. Currie, each his true and lawful attorney-in-fact and agent, 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 to this Report, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or their substitutes or substitute, may lawfully do or cause to be done by virtue hereof.

Pursuant to the requirements of the Securities Exchange Act of 1934, this Report has been signed below by the following persons on behalf of the registrant and in the capacities and on the dates indicated.


S-1





SIGNATURES
 
TITLE
DATE
 
 
 
 
/s/ Nachum Shamir
 
President and Chief Executive Officer, Director
February 25, 2015
Nachum Shamir

 
(Principal Executive Officer)
 
 
 
 
 
/s/ Harriss T. Currie
 
Chief Financial Officer, Senior Vice President of Finance  (Principal Financial Officer and Principal Accounting Officer)
February 25, 2015
Harriss T. Currie
 
 
 
 
 
 
/s/ Robert J. Cresci
 
Director
February 25, 2015
Robert J. Cresci
 
 
 
 
 
 
 
/s/ Thomas W. Erickson
 
Director
February 25, 2015
Thomas W. Erickson
 
 
 
 
 
 
 
/s/ Fred C. Goad, Jr.
 
Director
February 25, 2015
Fred C. Goad, Jr.
 
 
 
 
 
 
 
/s/ Jay B. Johnston
 
Director
February 25, 2015
Jay B. Johnston
 
 
 
 
 
 
 
/s/ Jim D. Kever
 
Director
February 25, 2015
Jim D. Kever
 
 
 
 
 
 
 
/s/ G. Walter Loewenbaum II
 
Chairman of the Board of Directors,
February 25, 2015
G. Walter Loewenbaum II
 
Director
 
 
 
 
 
/s/ Kevin M. McNamara
 
Director
February 25, 2015
Kevin M. McNamara
 
 
 
 
 
 
 
/s/ Edward A. Ogunro
 
Director
February 25, 2015
Edward A. Ogunro
 
 
 
 
 
 
 

S-2



EXHIBIT INDEX
EXHIBIT
NUMBER
 
 
DESCRIPTION OF DOCUMENT
 
 
 
2.1
 
Agreement and Plan of Merger, dated July 9, 2012, by and among Luminex Corporation, Grouper Merger Sub, Inc., GenturaDx, Inc. and the Seller Representative (Previously filed as an Exhibit to the Company's Current Report on Form 8-K, filed on July 12, 2012).*
 
 
 
3.1
 
Restated Certificate of Incorporation of the Company (Previously filed as an Exhibit to the Company's Registration Statement on Form S-1 (File No. 333-96317), filed February 7, 2000, as amended).
 
 
 
3.2
 
Amended and Restated Bylaws of the Company (Previously filed as an Exhibit to the Company's Current Report on Form 8-K (File No. 000-30109), filed September 16, 2008).
 
 
 
10.1#
 
2000 Long-Term Incentive Plan of the Company, as amended (Previously filed as an Exhibit to the Company's Quarterly Report on Form 10-Q (File No. 000-30109) for the quarterly period ended March 31, 2002).
 
 
 
10.2#
 
Form of Stock Option Award Agreement for the 2000 Long-Term Incentive Plan (Previously filed as an Exhibit to the Company's Registration Statement on Form S-1 (File No. 333-96317), filed February 7, 2000, as amended).
 
 
 
10.3#
 
Form of Indemnification Agreement between the Company and each of the directors and executive officers of the Company (Previously filed as an Exhibit to the Company's Current Report on Form 8-K (File No. 000-30109), filed September 16, 2008).
 
 
 
10.4
 
Lease Agreement between Aetna Life Insurance Company, as Landlord, and Luminex Corporation, as Tenant, dated October 19, 2001 (Previously filed as an Exhibit to the Company's Quarterly Report on Form 10-Q (File No. 000-30109) for the quarterly period ended September 30, 2001).
 
 
 
10.5
 
First Amendment to Lease Agreement between Aetna Life Insurance Company, as Landlord, and Luminex Corporation, as Tenant, dated July 25, 2002 (Previously filed as an Exhibit to the Company's Quarterly Report on Form 10-Q (File No. 000-30109) for the quarterly period ended June 30, 2002).
 
 
 
10.6
 
Lease Amendment between McNeil 4 & 5 Investors, LP, as Landlord, and Luminex Corporation, as Tenant, dated January 27, 2003 (Previously filed as an Exhibit to the Company's Annual Report on Form 10-K (File No. 000-30109) for the fiscal year ended December 31, 2002).
 
 
 
10.7
 
Lease Agreement between PS Business Parks, L.P., as Landlord, and Luminex Corporation, as Tenant, dated September 30, 2014.
 
 
 
10.8#
 
Employment Agreement, effective as of October 1, 2003, by and between Luminex Corporation and Harriss T. Currie (Previously filed as an Exhibit to the Company's Annual Report on Form 10-K (File No. 000-30109) for the fiscal year ended December 31, 2003).
 
 
 
10.9#
 
Employment Agreement effective as of October 1, 2003, by and between Luminex Corporation and David S. Reiter (Previously filed as an Exhibit to the Company's Annual Report on Form 10-K (File No. 000-30109) for the fiscal year ended December 31, 2003).
 
 
 
10.10#
 
Employment Agreement effective as of May 15, 2004, by and between Luminex Corporation and Patrick J. Balthrop (Previously filed as an Exhibit to the Company's Current Report on Form 8-K (File No. 000-30109), filed May 18, 2004).
 
 
 
10.11#
 
Employment Agreement effective as of May 23, 2005, by and between Luminex Corporation and Russell W. Bradley (Previously filed as an Exhibit to the Company's Current Report on Form 8-K (File No. 000-30109), filed May 25, 2005).
 
 
 
10.12#
 
Form of Restricted Stock Agreement for the 2000 Long-Term Incentive Plan and 2001 Broad-Based Stock Option Plan (Previously filed as an Exhibit to the Company's Quarterly Report on Form 10-Q (File No. 000-30109) for the quarterly period ended September 30, 2004).
 
 
 
10.13#
 
Form of Amendment to Executive Employment Agreements (Previously filed as an Exhibit to the Company's Annual Report on Form 10-K (File No. 000-30109) for the fiscal year ended December 31, 2005).
 
 
 
10.14#
 
Luminex Corporation Amended and Restated 2006 Equity Incentive Plan (Previously filed as an Exhibit to the Company's Current Report on Form 8-K (File No. 000-30109), filed May 21, 2009).
 
 
 
10.15#
 
Form of Non-Qualified Stock Option Agreement for the Amended and Restated 2006 Equity Incentive Plan (Previously filed as an Exhibit to the Company's Current Report on Form 8-K (File No. 000-30109), filed May 21, 2009).
 
 
 




EXHIBIT
NUMBER
 
 
DESCRIPTION OF DOCUMENT
10.16#
 
Form of Restricted Share Award Agreement for Officers & Employees for the Amended and Restated 2006 Equity Incentive Plan (Previously filed as an Exhibit to the Company's Current Report on Form 8-K (File No. 000-30109), filed May 21, 2009).
 
 
 
10.17#
 
Form of Restricted Share Award Agreement for Directors for the Amended and Restated 2006 Equity Incentive Plan (Previously filed as an Exhibit to the Company's Current Report on Form 8-K (File No. 000-30109), filed May 21, 2009).
 
 
 
10.18#
 
Form of Restricted Share Unit Agreement for Officers & Employees for the Amended and Restated 2006 Equity Incentive Plan (Previously filed as an Exhibit to the Company's Current Report on Form 8-K (File No. 000-30109), filed May 21, 2009).
 
 
 
10.19#
 
Form of Restricted Share Unit Agreement for Directors for the Amended and Restated 2006 Equity Incentive Plan (Previously filed as an Exhibit to the Company's Current Report on Form 8-K (File No. 000-30109), filed May 21, 2009).
 
 
 
10.20#
 
Employment Agreement effective as of March 1, 2007, by and between Luminex Corporation, Tm Bioscience and Jeremy Bridge-Cook (Previously filed as an Exhibit to the Company's Annual Report on Form 10-K (File No. 000-30109) for the fiscal year ended December 31, 2006).
 
 
 
10.21#
 
Amendment to Luminex Corporation Amended and Restated 2000 Long-Term Incentive Plan dated as of May 24, 2007 (Previously filed as an Exhibit to the Company's Quarterly Report on Form 10-Q (File No. 000-30109) for the quarterly period ended June 30, 2007).
 
 
10.22#
 
Luminex Corporation 2006 Equity Incentive Plan (Previously filed as an Exhibit to the Company's Proxy Statement (File No. 000-30109) for its Annual Meeting of Shareholders held on May 25, 2006).
 
 
 
10.23#
 
Form of Non-Qualified Stock Option Agreement for the 2006 Equity Incentive Plan (Previously filed as an Exhibit to the Company's Current Report on Form 8-K (File No. 000-30109), filed May 25, 2006).
 
 
 
10.24#
 
Form of Restricted Share Award Agreement for Officers & Employees for the 2006 Equity Incentive Plan (Previously filed as an Exhibit to the Company's Current Report on Form 8-K (File No. 000-30109), filed May 25, 2006).
 
 
 
10.25#
 
Form of Restricted Share Award Agreement for Directors for the 2006 Equity Incentive Plan (Previously filed as an Exhibit to the Company's Current Report on Form 8-K (File No. 000-30109), filed May 25, 2006).
 
 
 
10.26#
 
First Amendment to Employment Agreement, effective as of March 30, 2006, by and between Luminex Corporation and Russell W. Bradley.
 
 
 
10.27#
 
Form of Restricted Share Unit Agreement for the 2006 Equity Incentive Plan (Previously filed as an Exhibit to the Company's Annual Report on Form 10-K (File No. 000-30109) for the fiscal year ended December 31, 2006).
 
 
 
10.28#
 
Form of Amendments to Equity Award Agreements (Previously filed as an Exhibit to the Company's Quarterly Report on Form 10-Q (File No. 000-30109) for the quarterly period ended June 30, 2007).
 
 
 
10.29#
 
Management Incentive Plan (Previously filed as an Exhibit to the Company's Current Report on Form 8-K (File No. 000-30109), filed March 15, 2010).
 
 
 
10.30#
 
Luminex Corporation 2012 Long Term Incentive Plan (Previously filed as an Exhibit to the Company's Current Report on Form 8-K, filed March 13, 2012).
 
 
 
10.31#
 
Form of Restricted Share Unit Award Agreement for Awards under the Luminex Corporation 2012 Long Term Incentive Plan (Previously filed as an Exhibit to the Company's Current Report on Form 8-K, filed March 13, 2012).
 
 
 
10.32#
 
Luminex Corporation Second Amended and Restated 2006 Equity Incentive Plan (Previously filed as an Annex to the Company's Proxy Statement for its Annual Meeting of Stockholders held on May 17, 2012).
 
 
 
10.33#
 
Luminex Corporation Employee Stock Purchase Plan (Previously filed as an Annex to the Company's Proxy Statement for its Annual Meeting of Stockholders held on May 17, 2012).
 
 
 
10.34#
 
Form of Amendment to Employment Agreement, effective as of December 31, 2012, by and between Luminex Corporation and its Executives, (Previously filed as an Exhibit to the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 2012).
 
 
 




EXHIBIT
NUMBER
 
 
DESCRIPTION OF DOCUMENT
10.35#
 
Second Amendment to Employment Agreement, effective as of December 31, 2012, by and between Luminex Corporation and Patrick J. Balthrop (Previously filed as an Exhibit to the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2012).
 
 
 
10.36#
 
Luminex Corporation 2013 Long Term Incentive Plan (Previously filed as an Exhibit to the Company's Current Report on Form 8-K, filed March 25, 2013).
 
 
 
10.37#
 
Form of Restricted Share Unit Award Agreement for Awards under the Luminex Corporation 2013 Long Term Incentive Plan (Previously filed as an Exhibit to the Company's Current Report on Form 8-K, filed March 25, 2013).
 
 
 
10.38#
 
Consulting Agreement, dated October 14, 2014, between Luminex Corporation and Patrick J. Balthrop, Sr. (Previously filed as an Exhibit to the Company's Current Report on Form 8-K, filed October 20, 2014).
 
 
 
10.39#
 
Employment Agreement, dated October 14, 2014, between Luminex Corporation and Nachum Shamir (Previously filed as an Exhibit to the Company's Current Report on Form 8-K, filed October 20, 2014).
 
 
 
10.40#
 
Employment Agreement, dated August 14, 2012, by and between Luminex Corporation and Nancy M. Fairchild.
 
 
 
10.41#
 
Consulting Agreement, dated December 19, 2014, between Luminex Corporation and David S. Reiter (Previously filed as an Exhibit to the Company's Current Report on Form 8-K, filed December 27, 2014).
 
 
 
10.42#
 
Second Amendment to Employment Agreement, effective as of February 6, 2014, by and between Luminex Corporation and Nancy M. Fairchild.
 
 
 
10.43#
 
Third Amendment to Employment Agreement, effective as of January 1, 2015, by and between Luminex Corporation and Nancy M. Fairchild.
 
 
 
10.44#
 
Third Amendment to Employment Agreement, effective as of January 1, 2015, by and between Luminex Corporation and Russell W. Bradley.
 
 
 
10.45#
 
Omnibus Amendment to the Luminex Corporation Restricted Share Unit Award Agreements (2012 and 2013 LTIPs).
 
 
 
21.1
 
Subsidiaries of the Company.
 
 
 
23.1
 
Consent of Independent Registered Public Accounting Firm.
 
 
 
24.1
 
Power of Attorney (incorporated in the signature page of this report). 
 
 
 
31.1
 
Certification by CEO pursuant to Securities and Exchange Act Rules 13a-14(a) and 15d – 14(a), as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
 
 
 
31.2
 
Certification by CFO pursuant to Securities and Exchange Act Rules 13a-14(a) and 15d – 14(a), as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
 
 
 
32.1
 
Certification by CEO pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
 
 
 
32.2
 
Certification by CFO pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
 
 
 
101
 
The following materials from Luminex Corporation's Annual Report on Form 10-K for the year ended December 31, 2014, formatted in XBRL: (i) Condensed Consolidated Balance Sheets; (ii) Condensed Consolidated Statements of Comprehensive Income; (iii) Condensed Consolidated Statements of Cash Flows; and (iv) Notes to Condensed Consolidated Financial Statements.

#        Management contract or compensatory plan or arrangement.

*
Schedules, annexes and exhibits omitted pursuant to Item 601(b)(2) of Regulation S-K. Luminex agrees to furnish a supplemental copy of omitted schedules to the Securities and Exchange Commission upon request.





Exhibit 10.7
INDUSTRIAL LEASE AGREEMENT

THIS INDUSTRIAL LEASE AGREEMENT (this “ Lease ”) dated for references purposes only is made between PS Business Parks, L.P., a California limited partnership (“ Landlord ”), and Luminex Corporation, a Delaware corporation (“ Tenant ”), as of September 30, 2014 (the “ date of this Lease ”).
BASIC LEASE INFORMATION

PREMISES:
Approximately 162,117 rentable square feet comprised of (i) 53,925 rentable square feet commonly known as Suites 110, 120, 122, 125, 130, 145, and 150, in the McNeil 3 Building (defined below); (ii) 35,450 rentable square feet commonly known as Suites H, K, and K1, in the McNeil 4 Building ; (iii) 44,378 rentable square feet commonly known as Suite A, in the McNeil 5 Building ; and (iv) 28,364 rentable square feet commonly known as Suite A, in the McNeil 6 Building, each as further depicted on Exhibit A-1 .

BUILDINGS & PROJECTS:
Approximately 68,400 rentable square feet located at 12201 Technology Blvd., Austin, TX 78727 , as depicted on Exhibit A-2 (the “ McNeil 3 Building ”). The McNeil 3 Building is a part of the Project commonly referred to as McNeil 3 (the “ McNeil 3 Project ”), as depicted and more particularly described on Exhibit A-2 .

Approximately 35,450 rentable square feet located at 12212 Technology Blvd., Austin, TX 78727 , as depicted on Exhibit A-2 (the “ McNeil 4 Building ”). The Building is a part of the Project commonly referred to as McNeil 4 (the “ McNeil 4 Project ”), as depicted and more particularly described on Exhibit A-2 .    

Approximately 44,378 rentable square feet located at 12112 Technology Blvd., Austin, TX 78727 , as depicted on Exhibit A-2 (the “ McNeil 5 Building ”). The Building is a part of the Project commonly referred to as McNeil 5 (the “ McNeil 5 Project ”), as depicted and more particularly described on Exhibit A-2 .

Approximately 28,364 rentable square feet located at 12100 Technology Blvd., Austin, TX 78727 , as depicted on Exhibit A-2 (the “ McNeil 6 Building ”). The Building is a part of the Project commonly referred to as McNeil 6 (the “ McNeil 6 Project ”), as depicted and more particularly described on Exhibit A-2 .

As used in this Lease, the terms “Building” and “Project” shall be interpreted to mean, as the context may require, the Building and Project in which each portion of the Premises is located.

PERMITTED USE: Subject to applicable Laws, general administrative office, lab and warehouse for the development, manufacturing and marketing of biological testing technologies, and purposes incidental thereto.

TERM: A period of sixty (60) months and zero (0) days. Subject to Section 1.02, the Term shall commence on May 1, 2015 (the “ Commencement Date ”) and, unless terminated early in accordance with this Lease, end on April 30, 2020 (the “ Termination Date ”).

BASE RENT:

Total Base Rent for the Premises is as follows:






Period of Term
Monthly Base Rent
May 1, 2015 - July 31, 2015
$173,322.75
August 1, 2015 - March 31, 2016
$173,497.32
April 1, 2016 - April 30, 2016
$173,720.01
May 1, 2016 - July 31, 2016
$178,186.26
August 1, 2016 - March 31, 2017
$178,360.83
April 1, 2017 - April 30, 2017
$178,583.52
May 1, 2017 - July 31, 2017
$183,049.77
August 1, 2017 - August 31, 2017
$183,922.62
September 1, 2017 - April 30, 2018
$184,813.38
May 1, 2018 - April 30, 2019
$189,676.89
May 1, 2019 - April 30, 2020
$194,540.40


ESTIMATED INITIAL MONTHLY PROPORTIONATE SHARE OF OPERATING EXPENSES: $53,501.44 per month, subject to Exhibit D .

SECURITY DEPOSIT: $153,539.65, currently on file with Landlord subject to Section 5 of the Lease.

TENANT'S PROPORTIONATE SHARE:

OF THE MCNEIL 3 BUILDING: 78.84%      OF THE MCNEIL 3 PROJECT: 78.84%
OF THE MCNEIL 5 BUILDING: 100%          of THE MCNEIL 5 PROJECT: 100%
of THE MCNEIL 4 BUILDING: 100%          of THE MCNEIL 4 PROJECT: 100%
of THE MCNEIL 6 BUILDING: 100%          of THE MCNEIL 6 PROJECT: 100%

LANDLORD’S BROKER: NONE          TENANT’S BROKER: Endeavor Real Estate Group, Ltd.

TENANT’S SIC CODE: 3841 Surgical and Medical Instruments and Apparatus





ADDRESSES FOR NOTICES:
To: Tenant (at any time)
12212 Technology Blvd.
Austin, TX 78727
Attn: General Counsel
FAX:

To: Landlord
PS Business Parks
5555 N. Lamar Blvd., Suite J125
Austin, TX 78751
Attn: Property Manager  
FAX: 512/454-9357


TENANT’S BILLING ADDRESS [If different from Notice Address]: ____________________________

LANDLORD’S REMITTANCE ADDRESS: P.O. Box 200697-05, Dallas, TX 75320-0697


This Lease consists of the foregoing Basic Lease Information, the following Lease provisions consisting of Sections 1 through 28 and Exhibits A-1 , A-2 , B, C , D, and E , all of which are incorporated herein by this reference. Defined terms used in this Lease and included in the Basic Lease Information shall have the meanings given them in the Basic Lease Information.
 








1.
Lease of Premises; Compliance with Laws; Surrender .

1.01 Landlord leases to Tenant, and Tenant leases from Landlord, the Premises, upon the terms of this Lease. The Premises are leased “AS IS” except only for (i) the improvements, if any, which are to be constructed by Landlord pursuant to Exhibit B , and (ii) Landlord’s express obligations set forth in this Lease. Except as expressly provided in this Lease, Tenant acknowledges that neither Landlord nor any agent of Landlord has made any representation or warranty regarding the Premises. Without limiting Landlord’s express obligations set forth in this Lease, Tenant agrees that the Premises are in good order and satisfactory condition. Tenant is currently in possession of the Premises pursuant to the terms of that certain lease agreement dated October 19, 2001, as amended (the “ Existing Lease ”) by and between Tenant, as tenant, and Landlord. By reason of its existing occupancy of the Premises pursuant to the Existing Lease, Tenant is fully familiar with the Premises. The square footages set forth in this Lease are approximate and agreed. For purposes of this Lease, the term “ Property ” means the Building, the Project, and the parcel(s) of land on which they are located and, at Landlord’s discretion, the parking facilities and other improvements, if any, serving the Building, Project and/or the parcel(s) of land on which they are located.

1.02 Upon request made by Landlord following the Commencement Date, Tenant shall execute and deliver a commencement letter confirming the Commencement Date, the date upon which the Term shall expire, and such other matters regarding the commencement of this Lease and or the termination of the Existing Lease (as further described in Section 28.03 of this Lease) as Landlord shall reasonably request. Tenant’s failure to execute and return the commencement letter, or to provide written objection to the statements contained in the commencement letter, within 10 business days after the date of the commencement letter shall be deemed an approval by Tenant of the statements contained therein.

1.03 Intentionally Omitted.

1.04 Tenant, at its sole expense, agrees to comply with all federal, state and local laws, codes, ordinances, statutes, rules, regulations and other legal requirements (including covenants and restrictions) applicable to the Premises (collectively, “ Laws ”). Tenant agrees to cause the Premises to comply with all Laws, including by making any changes to the Premises necessitated by any Tenant activity, including but not limited to changes required by (a) any Tenant Improvements or Tenant Alterations (as defined below), or (b) any use of the Premises or Property by Tenant or any Tenant Entity. If any activity of Tenant or any Tenant Entity necessitates changes to the Project other than the Premises, then Landlord shall elect that Landlord accomplish the same at Tenant’s expense or that Tenant accomplish the same at its own expense. In the event that as a result of Tenant’s use, or intended use, of the Premises (other than ordinary occupancy), the Americans with Disabilities Act or any other Law requires modifications or the construction or installation of improvements in or to the Premises, Building, Project and/or common areas of the Property (as the same are identified from time to time by Landlord for common use) (the “ Common Areas ”), the parties agree that such modifications, construction or improvements shall be made at Tenant’s expense. Notwithstanding the foregoing, Landlord shall be responsible for correcting any violations of Title III of the Americans with Disabilities Act or the Texas Accessibility Standards with respect to the Premises or the Common Areas of the Building and the parking facilities used by Tenant (to the extent the same are not part of the Common Area) subject to Tenant’s obligation to pay its Proportionate Share of Operating Expenses.

Notwithstanding the foregoing, Landlord's obligation with respect to the Premises shall be limited to (a) violations that arise out of improvements performed only by Landlord’s contractors on Tenant’s behalf prior to delivery of that portion of the Premises in question or (b) the condition of that portion of the Premises in question at the time of execution of the document adding that portion of the Premises in question to the "Premises” and, in each case, prior to the installation of any furniture, equipment and other personal property of Tenant; and provided further that Tenant, not Landlord, shall be responsible for the correction of any violations that arise out of or in connection with (i) any claims brought under any provision of the Americans with Disabilities Act other than Title III, (ii) the specific nature of Tenant's business in the Premises, (iii) the acts or omissions of Tenant or any Tenant Entity, (iv) the arrangement of any furniture, equipment or other personal property in the Premises, (v) any repairs or Tenant Alterations performed by or on behalf of Tenant (other than the Tenant Improvements performed only by Landlord’s contractors), (vi) unique requirements of any employees of Tenant, and (vii) any design or configuration of the Premises specifically requested by Tenant. Landlord shall have the right to contest any alleged violation in good faith, including, without limitation, the right to apply for and obtain a waiver or deferment of compliance, the right to assert any and all defenses allowed by law and the right to appeal any decisions, judgments or rulings to the fullest extent permitted by law. The cost of any such compliance by Landlord shall constitute an Operating Expense hereunder. Landlord or such other person(s) as Landlord may appoint shall have the exclusive control and management of the Common Areas. Tenant and Tenant’s business invitees, employees and customers shall have the nonexclusive right, in common with Landlord and all others to whom Landlord has granted or may hereafter grant rights, to use the Common Areas, subject to the other terms and provisions of this Lease. Landlord shall have the right, in Landlord’s sole discretion, from time to time, (i) to make changes to the Common Areas, including, without limitation, changes in the location, size, shape and number of the lobbies, windows, stairways, air shafts, elevators, escalators, restrooms, driveways, entrances, parking spaces, parking areas, loading and unloading areas, ingress, egress, direction of traffic, landscaped areas, walkways and utility raceways, (ii) to close temporarily any of the Common Areas for maintenance purposes





so long as reasonable access to the Premises remains available, (iii) to designate other land outside the boundaries of the Property to be a part of the Common Area, (iv) to add additional buildings and improvements to the Common Areas, and (v) and to do and perform such other acts and make such other changes in, to or with respect to the Common Areas and Property as Landlord may, in the exercise of sound business judgment, deem to be appropriate.
Upon expiration or termination of this Lease, Tenant agrees to remove all of Tenant’s personal property from the Premises and return the Premises to Landlord in the same condition as existed on the date of this Lease, as previously improved, excepting normal wear and tear and damage by casualty, with all removal, repair, and restoration duties of Tenant, including without limitation pursuant to Section 9.04, being fully performed to Landlord’s reasonable satisfaction. Notwithstanding any other provision to this Lease to the contrary, Tenant shall not be obligated to remove any wiring and cabling installed at or about the Premises prior to the date of this Lease and shall abandon the same in place at the expiration or termination of the Lease. In addition, and notwithstanding anything to the contrary contained in this Lease, (i) provided Landlord notifies Tenant in writing thirty (30) days prior to the expiration of the Lease, Tenant shall remove the generators installed in McNeil 3, McNeil 4 and McNeil 5 (together, the “ Generators ”) and, in such event, Tenant shall repair any damage caused by such removal, as well as (ii) Tenant in its sole discretion may remove the Generators prior to the expiration of the Lease, and in such event, Tenant shall repair any damage caused by such removal.

Notwithstanding any other provision of this Lease to the contrary, with regard to any space added to the Premises from and after the Commencement Date, Tenant shall at its expense either remove or take all necessary actions to leave in place, in compliance with the National Electric Code or other applicable Law, at or prior to the expiration or termination of this Lease, all wiring and cabling installed at or about such portion of the Premises which shall have been installed by or on behalf of Tenant. Such wiring and cabling shall include but not be limited to (a) wiring and cabling above the ceiling panels, behind or within walls, and under or within floors, and (b) wiring and cabling for voice, data, security or other purposes.
If, after the termination or expiration of this Lease, or the termination of Tenant’s right of possession following a Default, any personal property belonging to Tenant is left in or about the Premises, then such personal property will, at the option of Landlord, be deemed abandoned and may be disposed of by Landlord at the expense and risk of Tenant.
1.01 Landlord has no duty to provide security for any portion of the Property. To the extent Landlord elects to provide any security, Landlord is not warranting the effectiveness of any security personnel, services, procedures or equipment and Tenant shall not rely on any such personnel, services, procedures or equipment. Landlord shall not be liable for failure of any such security personnel, services, procedures or equipment to prevent or control, or to apprehend anyone suspected of, personal injury or property damage in, on or around the Property.

2. Base Rent . On or before the first day of each calendar month of the Term, Tenant will pay to Landlord the Base Rent for such month. Monthly rent for any partial calendar month will be prorated. All sums and other charges payable by Tenant to Landlord hereunder shall be deemed rent. Base Rent and all other amounts required to be paid by Tenant hereunder shall be paid without deduction or offset and without prior notice or demand. All such amounts shall be paid in lawful money of the United States of America and shall be paid to Landlord at the address stated herein or to such other persons or to such other places as Landlord may designate in writing from time to time. Amounts payable hereunder shall be deemed paid when actually received by Landlord.

3. Additional Rent . Unless otherwise specifically stated in this Lease, any charge payable by Tenant under this Lease other than Base Rent is called “ Additional Rent .” The term “ rent ” whenever used in this Lease means Base Rent, Additional Rent and/or any other charge, fee or monies payable by Tenant under the terms of this Lease. Tenant shall pay Tenant’s Proportionate Share of Operating Expenses in accordance with Exhibit D of this Lease.
Landlord and Tenant agree that each provision of the Lease for determining charges, amounts and Additional Rent by Tenant (including without limitation, Exhibit D) is commercially reasonable, and as to each such charge or amount, constitutes a “method by which the charge is to be computed” for purposes of Section 93.012 (Assessment of Charges) of the Texas Property Code, as such section now exists or as it may be hereafter amended or succeeded.
4. Late Charges . If any sum payable by Tenant to Landlord is not received by Landlord within five (5) days after such payment is due, Tenant shall pay a late charge equal to the greater of (a) $50.00, or (b) 5% or the highest per annum rate of interest permitted from time to time under applicable Law (whichever is less) of the then delinquent amount. A $50.00 handling fee will be paid to Landlord by Tenant for each bank returned check. In the event of a Default, Tenant, at Landlord’s election, shall make all future payments to Landlord by wire or electronic transfer, by cashier’s check or by an automatic payment from Tenant’s bank account to Landlord’s account, in each case without cost to Landlord. The acceptance of late charges and returned check charges by Landlord will not constitute a waiver of any Tenant default nor any other rights or remedies of Landlord.






5. Security Deposit . Landlord and Tenant acknowledge that in accordance with the terms of the Existing Lease, Tenant has previously delivered the sum of One Hundred Fifty-Three Thousand Five Hundred Thirty-Nine Dollars and Sixty-Five Cents  ($ 153,539.65 ) (the “ Existing Security Deposit ”) to Landlord as a security deposit in connection with the Existing Lease.  Tenant acknowledges and agrees that Landlord shall continue to hold the Existing Security Deposit as security for the faithful performance by Tenant of all the terms, covenants, and conditions of this Lease.  Accordingly, such Existing Security Deposit shall be deemed the Security Deposit under this Lease and shall equal the amount set forth under Basic Lease Information, Security Deposit, of this Lease (the “ Security Deposit’ ). Landlord will not be required to keep the Security Deposit separate from its general funds. Without limiting or impairing any right Landlord may have or hereafter acquire under this Lease or applicable Law with respect to the Security Deposit, Tenant hereby grants to Landlord a security interest in the Security Deposit. The Security Deposit is not an advance rent payment or a measure of damages under this Lease. If Tenant fails to pay any rent due herein, following any applicable notice and cure period, or otherwise is in Default, Landlord may, without waiver of the default or of any other right or remedy, use, apply or retain all or any portion of the Security Deposit for the payment of any amount due Landlord or to compensate Landlord for any loss or damage suffered by Tenant’s default. Within 5 days after written notification by Landlord, Tenant will restore the Security Deposit to the full amount required under this Lease. No part of the Security Deposit shall be considered to be held in trust, to bear interest (except when required by Law) or to be prepayment for any monies to Landlord by Tenant under this Lease. Provided that Tenant has notified Landlord of the address to which the Security Deposit should be returned, within 60 days after the Termination Date or earlier termination of this Lease, Landlord shall return the Security Deposit to Tenant, less such portion thereof as Landlord shall have applied in accordance with this Article 5 and applicable Law. Landlord shall assign the Security Deposit to any successor or transferee to Landlord’s interest in the Property and, following the assignment, Landlord shall have no further liability for the return of the Security Deposit.

6. Use of Premises .

6.01 The Premises will be used and occupied only for the Permitted Use. Tenant will, at its sole expense, comply with all conditions and covenants of this Lease, and all Laws. Tenant will not use or permit the use of the Premises, the Property or any part thereof, in a manner that is unlawful or in violation of any Law, conflicts with or is prohibited by the terms and conditions of this Lease or the Rules and Regulations (as defined in Section 27.08 below), diminishes the appearance or aesthetic quality of any part of the Property, creates waste or a nuisance, or causes damage (excluding normal wear and tear) to the Property. Tenant shall not permit any objectionable or unpleasant odors, smoke, dust, gas, noise or vibrations to emanate from the Premises nor take or permit any other action in the Premises that would endanger, annoy, or unreasonably interfere with the operations of, Landlord or any other tenant of the Property. Tenant shall obtain, at its sole expense, any permit or other governmental authorization required for Tenant to legally operate its business from the Premises. Any animals, excepting guide dogs, on or about the Property or any part thereof are expressly prohibited. Landlord acknowledges that Tenant (i)  keeps and uses deceased animal tissue samples at the Premises for research, and (ii)  conducts research to develop detection assays for biological agents. Notwithstanding the foregoing, Landlord only consents to Tenant’s use of the Premises for the same to the extent permitted by Laws; provided further, Landlord makes no representations or warranties regarding whether such use(s) are permitted in the Premises or Property under Laws.

6.02 In the event of any excessive trash in or outside the Premises, as determined by Landlord in its reasonable discretion, Landlord will have the right to remove such excess trash and charge all costs and expenses attributable to its removal to Tenant. Tenant will not cause, maintain or permit any outside storage on or about the Property without Landlord’s prior express written consent; provided that Landlord shall not unreasonably withhold its consent to Tenant’s request from time to time for temporary outside storage, subject to terms (including the location of such storage) agreeable to Landlord. In the event of any unauthorized outside storage by Tenant or any Tenant Entity, Landlord will have the right, without notice, in addition to such other rights and remedies it may have, to remove any such storage at Tenant’s expense.

7. Parking . All parking will comply with the terms and conditions of this Lease and applicable Rules and Regulations (as defined in Exhibit C hereto). Tenant will have a non-exclusive privilege on a "first-come, first-served" basis to use Tenant’s Proportionate Share of those parking spaces designated by Landlord for public parking. The parking privileges granted to Tenant are personal to Tenant; Tenant shall not assign or sublet parking privileges separately or apart from Tenant’s assignment or subletting of the Premises (which assignment and or subletting shall comply with Section 16 of this Lease).

8. Utilities and Services .

8.01 Tenant agrees to make all arrangements for, and to pay directly all costs of, utility services supplied to the Premises, including but not limited to, water, gas, heat, light, power, telephone, and sewer. In the event it is not possible for Tenant to obtain separate utility and/or other services, such utility and/or other services may, at Landlord’s discretion, be obtained in Landlord’s name, and Tenant will pay Landlord, as Additional Rent, the cost of any utility services provided by Landlord either: (a) through inclusion in Operating Expenses (except for excess usage, which will be paid as a separate charge by Tenant to Landlord); (b) by a separate charge payable by Tenant to Landlord; or (c) by a separate charge billed by the applicable utility company and payable directly by





Tenant. Landlord reserves the right to separately meter any such service where Tenant’s Proportionate Share of a Building is less than 100% at Tenant’s expense at any time during the Term.

8.02 Except as expressly provided in the following sentence, Landlord will not be liable or deemed in default, nor will there be any abatement of rent, breach of any covenant of quiet enjoyment, partial or constructive eviction or right to terminate this Lease, for (a) any interruption or reduction of utilities, utility services or telecommunication services, (b) any telecommunications or other company (whether selected by Landlord or Tenant) failing to provide such utilities or services or providing the same defectively, and/or (c) any utility interruption in the nature of blackouts, brownouts, rolling interruptions, hurricanes, tropical storms or other natural disasters. If the Premises, or a material portion of the Premises, are made untenantable for a period in excess of 30 consecutive business days as a result of any failure to furnish, or any interruption, diminishment or termination of services due to the application of Laws, the failure of any equipment which Landlord is required to maintain under this Lease, the performance of repairs, improvements or alterations which Landlord is required to make, utility interruptions or the occurrence of an event of Force Majeure (collectively, a “ Service Failure ”) that is reasonably within the control of Landlord to correct, then Tenant, as its sole remedy, shall be entitled to receive an abatement of Base Rent and Tenant’s Proportionate Share of Operating Expenses payable hereunder during the period beginning on the 31 st consecutive business day of the Service Failure and ending on the day the service has been restored. If the entire Premises have not been rendered untenantable by the Service Failure, the amount of abatement shall be equitably prorated. Tenant agrees to comply with any energy conservation programs required by Law. Tenant has satisfied itself as to the adequacy of any Landlord owned utility equipment and the quantity of telephone lines and other service connections to the “Building’s Point of Demarcation” available for Tenant’s use.

8.03 Tenant shall, at its own cost and expense, enter into a regularly scheduled preventive maintenance/service contract with a maintenance contractor approved by Landlord for servicing all heating and air conditioning systems and equipment serving the Premises (and a copy thereof shall be furnished to Landlord). As of the date of this Lease, the portion of the Premises at the (i) McNeil 3 Building is served by 42 HVAC units; (ii) McNeil 4 Building is served by 32 HVAC units; (iii) McNeil 5 Building is served by 25 HVAC units, and (iv) McNeil 6 Building is served by 20 HVAC units. The service contract must include all services suggested by the equipment manufacturer in the operation/maintenance manual and must be effective as of the date of this Lease. Should Tenant fail to do so, Landlord may, upon notice to Tenant, enter into such service contract on behalf of Tenant or perform the work and in either case, charge Tenant the cost thereof along with a reasonable amount for Landlord’s overhead.

Provided that Tenant enters into, and continues throughout the Term, the service contract required under this Section 8.03, then in the event a mutually acceptable licensed HVAC technician advises Tenant and Landlord in writing that an HVAC unit serving the Premises is in need of replacement and cannot be repaired, and provided no Default exists hereunder, then upon the written election of Tenant to Landlord, Landlord shall replace such HVAC unit within ten (10) business days of Landlord’s receipt of such written election with a new HVAC unit (the “ New HVAC Unit ”); provided however, Landlord shall not be required to replace (a) HVAC unit(s) damaged as the result of a casualty (which replacement shall be accomplished pursuant to the terms of Section 15), (b) HVAC unit(s) damaged as the result of the negligence or willful misconduct of Tenant or any Tenant Entity, (c) there are less than six (6) months remaining in the Term, or (d) more than ten percent (10%) of the HVAC units serving any particular Building in any twelve month period (such period commencing upon the replacement of the first such HVAC unit serving such particular Building). The cost of any such New HVAC Unit shall be payable by Tenant to Landlord as Additional Rent during the Term, payable in equal monthly installments of 1/120 th per month until the earlier of the (i) expiration or termination of the Lease, or (ii) cost of such New HVAC Unit is fully paid; provided however, if this Lease is terminated as the result of a Default by Tenant, then Landlord may claim, as part of Landlord’s damages, the unamortized portion of the cost of any such New HVAC Unit to the extent it would have been amortized over the term of the Lease had it not been terminated. In addition to the service contract requirements set forth above, the service contract shall require (a) regular service on a quarterly basis, changing belts, filters, and other parts as required and making all repairs to the HVAC system, and (b) a detailed record of all services performed on the HVAC system, and a yearly service report to be furnished to Tenant (with a required copy to Landlord) at the end of each calendar year. If Landlord determines that Tenant is not properly maintaining the HVAC system as required under this Lease, then (x) Landlord shall provide Tenant with ten (10) days’ written notice and opportunity to cure, and (y) should Tenant fail to timely cure, Landlord shall have no further obligation to provide New HVAC Units. Tenant acknowledges that the cure period set forth in the previous sentence shall control in all events and shall not be extended by the terms of Section 17.04.
9.
Tenant Improvements; Tenant Alterations; Mechanic’s Liens .

9.01 Any improvements to be constructed in the Premises by, for or on behalf of Tenant prior to the Commencement Date are referred to throughout this Lease as “ Tenant Improvements .” All Tenant Improvements will be performed in accordance with the terms and conditions outlined in Exhibit B and also in accordance with the provisions set forth in this Lease, including this Article 9 regarding Tenant Alterations.





9.02 The following provisions apply to “ Tenant Alterations ” which means and includes (a) any alterations, additions or improvements to the Premises undertaken by or on behalf of Tenant after the Commencement Date, (b) any utility installations at the Premises undertaken by Tenant after the Commencement Date, and (c) any repair, restoration, replacement, or maintenance work at the Premises undertaken by or on behalf of Tenant after the Commencement Date. Tenant shall not commence any Tenant Alteration without first obtaining the prior written consent of Landlord in each instance, which consent shall not be unreasonably withheld, delayed or conditioned. Tenant shall submit such information regarding the intended Tenant Alteration as Landlord may reasonably require, and no request for consent shall be deemed complete until such information is so delivered. The following provisions apply to all Tenant Alterations: (i) Tenant shall hire a licensed general contractor approved by Landlord who, in turn, shall hire only licensed subcontractors; (ii) Tenant shall obtain all required permits and deliver a copy of the same to Landlord. Tenant shall install all Tenant Alterations in strict compliance with all Laws, permits, any plans approved by Landlord, and all conditions to Landlord’s approval; (iii) unless Landlord elects otherwise, Tenant shall remove each Tenant Alteration at the end of this Lease or Tenant’s right of possession and restore the Premises to its condition prior to the installation of such Tenant Alterations, all at Tenant’s sole expense; and (iv) Tenant shall deliver to Landlord, within ten (10) days following installation of each Tenant Alteration, (A) accurate, reproducible as-built plans, (B) proof of final inspection and approval by all governmental authorities, (C) complete lien waivers acceptable to Landlord for all costs of the Tenant Alteration, and (D) a copy of a recorded notice of completion. Landlord’s approval of any Tenant Improvements and Tenant Alterations and/or Landlord’s approval or designation of any general contractor, subcontractor, supplier or other project participant will not create any liability whatsoever on the part of Landlord. Notwithstanding anything to the contrary contained herein, so long as Tenant’s written request for consent for a proposed Tenant Alteration contains the following statement in large, bold and capped font “PURSUANT TO ARTICLE 9 OF THE LEASE, IF LANDLORD CONSENTS TO THE SUBJECT ALTERATION, LANDLORD SHALL NOTIFY TENANT IN WRITING WHETHER OR NOT LANDLORD WILL REQUIRE SUCH ALTERATION TO BE REMOVED AT THE EXPIRATION OR EARLIER TERMINATION OF THE LEASE.”, at the time Landlord gives its consent for any Tenant Alterations, if it so does, Tenant shall also be notified whether or not Landlord will require that such Tenant Alterations be removed upon the expiration or earlier termination of this Lease. Notwithstanding anything to the contrary contained in this Lease, at the expiration or earlier termination of this Lease and otherwise in accordance with the terms and conditions of this Lease, Tenant shall be required to remove all Tenant Alterations made to the Premises except for any such Tenant Alterations which Landlord expressly indicates or is deemed to have indicated shall not be required to be removed from the Premises by Tenant. If Tenant’s written notice strictly complies with the foregoing and if Landlord fails to so notify Tenant whether Tenant shall be required to remove the subject Tenant Alterations at the expiration or earlier termination of this Lease, Landlord shall be deemed not to require the removal of (and Tenant shall not be obligated to remove) the subject Tenant Alterations. Tenant shall reimburse Landlord for any sums paid by Landlord for third party examination of Tenant’s plans for any Tenant Alterations and any other costs incurred by Landlord in connection with such Tenant Alterations.

9.03 Tenant shall pay all costs of Tenant Alterations as and when due. Tenant shall not allow any lien to be filed. Tenant shall obtain final lien waivers and third-party beneficiary agreements from all contractors, subcontractors, suppliers, and others providing equipment, labor, materials, or services, in the form reasonably required by Landlord and in compliance with Laws. If any lien is filed, Tenant shall within ten (10) business days remove such lien. In addition, if any such lien is filed, then, without waiver of any other right or remedy, Landlord shall have the right to cause such lien to be removed by any means allowed by Law. All sums expended by Landlord in connection with such lien and/or its removal, including attorney fees, shall be due from Tenant to Landlord within ten (10) days after Landlord’s written demand for payment, together with interest on any such amounts not paid after due at the rate of 12% or the highest per annum rate of interest permitted from time to time under applicable Law (whichever is less).

9.04 All Tenant Improvements and Tenant Alterations are part of the realty and belong to Landlord. Tenant shall be solely responsible for all taxes applicable to all Tenant Improvements and Tenant Alterations, to insure all Tenant Improvements and Tenant Alterations and to restore the same following any casualty. In the event that Landlord requires Tenant to remove any Tenant Alterations as a condition to Landlord’s approval of Tenant Alterations pursuant to Section 9.02 above, or requires Tenant to remove at the expiration or termination of the Lease any Tenant Improvements constructed pursuant to Exhibit B attached hereto, then Tenant shall remove any such Tenant Alterations and Tenant Improvements at the expiration or termination of this Lease at its sole cost and expense and repair any damage caused by such removal. If Tenant fails to perform its obligations in a timely manner, Landlord may perform such work at Tenant’s expense. The provisions of this Article 9 shall survive the expiration or any earlier termination of this Lease.

10.
Repairs .

10.01 Subject to Section 10.02 below, Tenant shall, at all times and at its sole cost and expense, keep all parts of the Premises (including without limitation the Tenant Improvements and Tenant Alterations, windows, glass and plate glass, doors (including, without limitation, overhead and roll up doors), exterior stairs, skylights, any special office entries, interior walls and finish work, floors and floor coverings), interior and exterior, and all equipment and facilities within or serving the Premises, in good order, condition and repair regardless of whether the portion of the Premises requiring repairs, or the means of repairing same, are reasonably or readily accessible, and regardless of whether the need for such repairs or maintenance occurs as a result of Tenant’s use, any prior use, vandalism,





acts of third parties, Force Majeure (as defined in Article 26 below) or the age of the Premises, reasonable wear and tear and damage by casualty (which shall be governed by section 15) excepted. The standard for comparison of condition will be the condition of the Premises as of the date of this Lease, and failure to meet such standard shall create the need to repair. If Tenant does not perform required maintenance or repairs, Landlord shall have the right, without waiver of Default or of any other right or remedy, to perform such obligations of Tenant on Tenant’s behalf, and Tenant will reimburse Landlord for any costs incurred, together with an administrative fee in an amount equal to 10% of the cost of the repairs, immediately upon demand.

10.02 Landlord shall maintain in good repair and condition, reasonable wear and tear and damage by casualty excepted, and (subject to Tenant’s obligations hereunder) in accordance with all applicable laws: (i) the Common Areas and the parking facilities used by Tenant (to the extent the same are not part of the Common Areas), except to the extent provided otherwise in Section 1.04; (ii) all utility infrastructure from (A) the point of connection to the lines of the applicable utility provider to (B) the connection point to the Premises (the “ Utility Infrastructure ”), and (iii) the foundations, the roofs, and the structural soundness of the exterior and load bearing walls and other structural components of the Building, subject to Tenant’s obligation to pay its Proportionate Share of Operating Expenses. In the event the Premises constitute a portion of a multiple occupancy Building or otherwise at Landlord’s election, Landlord shall perform the repair and maintenance of the roof, exterior walls, exterior areas and common sewage line plumbing which are otherwise Tenant’s obligation under Section 10.01 above, and any other maintenance and repair of exterior, structural, and/or common elements which Landlord shall elect, and Tenant shall, in lieu of the obligations set forth under Section 10.01 above with respect to such items, be liable for its Proportionate Share of the expenses so incurred by Landlord; provided, Tenant shall reimburse Landlord for 100% of any such expense incurred by Landlord due to the act or omission of Tenant or any Tenant Entity. If Landlord defaults in performing any of its non-structural repair and maintenance obligations to the Premises as expressly stated in this Lease and such default creates a risk of imminent injury to person or substantial property damage or unreasonably and materially interferes with Tenant’s ability to conduct its business at the Premises, and such default is not remedied by Landlord within 30 days after Tenant shall have given Landlord written notice specifying such default, and in the case of any such default which cannot with due diligence and in good faith be cured within 30 days, within such additional period as may be reasonably required to cure such default with due diligence and in good faith (it being intended that, in connection with any such default which is not susceptible of being cured with due diligence and in good faith within 30 days, the time within which Landlord is required to cure such default shall be extended for such additional period as may be necessary for the curing thereof with due diligence and in good faith), then Tenant, without being obligated to do so, shall have the right, but not the obligation, to perform the nonstructural repair or maintenance obligation to the Premises which Landlord failed to perform. Subject to the remaining terms and conditions of this paragraph, the full amount of the reasonable costs and expenses so incurred by Tenant (the “ Reimbursable Costs ”) shall be paid by Landlord to Tenant, within 30 days after written demand therefore (provided that such written demand is accompanied by reasonable documented evidence of the Reimbursable Costs). If Landlord delivers to Tenant within 30 days after receipt of Tenant’s invoice of Reimbursable Costs, a written objection to the payment of such invoice, setting forth with reasonable particularity Landlord’s reasons for its claim that such action did not have to be taken by Landlord pursuant to the terms of this Lease or that the charges are excessive (in which case Landlord shall pay the amount it contends would not have been excessive), then, as Tenant’s sole remedy, Tenant may proceed to claim a default by Landlord and file an action in a court of competent jurisdiction in connection therewith. Except as provided in this Section 10.02, Tenant expressly waives the benefit of any statute or other legal right now or hereafter in effect which would otherwise afford Tenant the right to make repairs at Landlord’s expense, whether by deduction of rent or otherwise, or to terminate this Lease because of Landlord’s failure to keep the Property, or any part thereof in good order, condition and repair. Further, Tenant waives all rights to claim a lien under §91.004(b) of the Texas Property Code or any other Law against the rent, the Project or Landlord’s property.

11.
Insurance .

11.01    Tenant will not do or permit anything to be done within or about the Premises or the Property which will increase the existing rate of any insurance on any portion of the Property or cause the cancellation of any insurance policy covering any portion of the Property (including, without limitation, any liability coverage). Tenant will, at its sole cost and expense, comply with any requirements of any insurer of Landlord. Tenant agrees to maintain policies of insurance described in this Article. Landlord reserves the right, from time to time, to require additional coverage (including, flood insurance, if the Premises is located in a flood hazard zone), and/or to require higher amounts of coverage.

11.02    Tenant shall maintain the following insurance (“ Tenant’s Insurance ”):

(a)
Commercial General Liability Insurance applicable to the Premises and its appurtenances providing, on an occurrence basis, a minimum of $1,000,000.00, and not less than $2,000,000.00 in the annual aggregate, covering third-party bodily injury, property damage, personal injury and advertising injury, product/completed operations as applicable, medical expenses and contractual liability. Defense costs will be in addition to the limit of liability. A combination of a General Liability policy and an umbrella policy or excess liability policy may be used to satisfy this limit;





(b)
Property/Business Interruption Insurance written on an All Risk or Special Cause of Loss Form at replacement cost value and with a replacement cost endorsement covering all of Tenant’s business and trade fixtures, equipment, movable partitions, furniture, merchandise and other personal property within the Premises, including for which Tenant has repair obligations and any Tenant Improvements and Tenant Alterations performed by or for the benefit of Tenant. No coinsurance provision will apply;

(c)
Excess Liability in the amount of $2,000,000.00 per occurrence;

(d)
Workers’ Compensation Insurance in amounts not less than the amounts required by Law;

(e)
Employers Liability Coverage of at least $1,000,000.00 (each accident, disease - each employee, disease - policy limit);

(f)
Automobile Liability coverage of not less than $1,000,000.00 combined single limit including property damage covering Tenant’s owned, and hired vehicles; and

(g)
If Tenant uses any part of the Premises or Property to store or to perform work on vehicles, Tenant shall maintain garage liability insurance in such form and amount as Landlord may require from time to time, but not less than $2,000,000.00.

11.03    No insurance policy of Tenant shall have a self insured retention or deductible greater than $50,000.00.

11.04    Any company writing Tenant’s Insurance shall be licensed to do business in the state in which the Premises is located and shall have an A.M. Best rating of not less than A-VIII.

11.05    Tenant will deliver to Landlord (and, at Landlord’s request, to any Mortgagee (as defined in Article 25 below) or to any other third party), simultaneously with its execution of this Lease and thereafter at least 5 days prior to expiration, cancellation or change in insurance, certificates acceptable to Landlord of insurance evidencing, at a minimum, the coverage specified in this Article 11. All such certificates shall be in form and substance reasonably satisfactory to Landlord, shall affirmatively demonstrate all coverage and requirements set forth in this Lease, shall contain no disclaimers of coverage, other than standard disclaimers that are typical in similar policies, and shall include that the insurer will endeavor to give the certificate holder 30 days’ written notice prior to cancellation or change in any coverage. In addition, Tenant will give Landlord at least 30 days’ prior written notice prior to cancellation or change in any coverage.

11.06    Tenant hereby assigns to Landlord all its rights to receive any proceeds of such insurance policies attributable to any Tenant Improvements and Tenant Alterations if this Lease is terminated due to damage or destruction. Landlord and the Landlord Related Parties shall be named additional insureds on Tenant’s insurance policies (excluding Workers’ Compensation Insurance); provided, however, that with respect to property insurance covering any Tenant Improvements and Tenant Alterations, Landlord and the Landlord Related Parties shall be loss payee thereunder (and the foregoing designations shall be evidenced on the insurance certificates delivered to Landlord as required hereby). All insurance to be carried by Tenant will be primary to, and non-contributory with, Landlord’s insurance, and there will be no exclusion for cross-liability endorsements and will in addition to the above coverage specifically insure Landlord against any damage or loss that may result either directly or indirectly from any default of Tenant under Article 13 (Hazardous Materials) herein. Any similar insurance carried by Landlord will be non-contributory and considered excess insurance only.

11.07    Tenant will name Landlord (and, at Landlord’s request, any Mortgagee (as defined in Article 25 below), Landlord’s agents, and/or any other parties designated by Landlord) as additional insureds on all insurance policies required of Tenant under this Lease, other than Worker’s Compensation, Employer’s Liability, and Fire and Extended coverage (except on Tenant Improvements or Tenant Alterations to the Premises for which Landlord shall be named loss payee) insuring Landlord and such other additional insureds regardless of any defenses the insurer may have against Tenant and regardless of whether the subject claim is also made against Tenant. All insurance policies carried by Tenant will permit the insured, prior to any loss, to agree with a third party to waive any claim it might have against said third party without invalidating the coverage under the insurance policy, and will release Landlord and the Landlord Related Parties (as defined in Article 24 below), from any claims for damage to any person, to the Property of which the Premises are a part, any existing improvements, Tenant Improvements and Tenant Alterations to the Premises, and to any furniture, fixtures, equipment, installations and any other personal property of Tenant caused by or resulting from, risks which are to be insured against by Tenant under this Lease, regardless of cause. The foregoing shall be evidenced in Tenant’s certificate of insurance.






11.08    Landlord will secure and maintain insurance coverage in such limits as similarly situated Landlord’s would deem commercially reasonable to afford adequate protection. The premiums for such coverage are “ Insurance Premiums ” under Exhibit D to this Lease. Any proceeds of such insurance shall be the sole property of Landlord to use as Landlord determines. Tenant will provide, at its own expense, all insurance as Tenant deems adequate to protect its interests.

11.09    Without limiting the effect of any other waiver of or limitation on the liability of Landlord set forth herein, and except as provided in Article 12 below, Landlord and Tenant hereby waive and shall cause their respective insurance carriers to waive any and all rights of recovery, claims, actions or causes of action against the other for any loss or damage with respect to Tenant’s personal property, fixtures and equipment, any Tenant Improvements or Tenant Alterations, the Building, the Premises, or any contents thereof, INCLUDING RIGHTS, CLAIMS, ACTIONS AND CAUSES OF ACTION BASED ON NEGLIGENCE , which loss or damage is (or would have been, had the insurance required by this Lease been carried) covered by insurance. For the purposes of this waiver, any deductible with respect to a party’s insurance shall be deemed covered by and recoverable by such party under valid and collectable policies of insurance. For purposes of this Section 11.09, “Landlord” shall include the Landlord Related Parties.

11.10    Whenever Tenant shall undertake any alterations, additions or improvements in, to or about the Premises, including, without limitation, any Tenant Improvements and/or Tenant Alterations (“ Work ”) the aforesaid insurance protection must extend to and include injuries to persons and damage to property arising in connection with such Work, without limitation including liability under any applicable structural work act, and such other insurance as Landlord shall require; and the policies of or certificates evidencing such insurance must be delivered to Landlord prior to the commencement of any such Work.

11.11    So long as the coverage afforded Landlord, the other additional insureds and any designees of Landlord shall not be reduced or otherwise adversely affected, all or part of Tenant’s insurance may be carried under a blanket policy covering the Premises and  any other of Tenant’s locations, or by means of a so called “Umbrella” policy  and/ or by an Excess Liability policy  so long as the total required coverage amounts are met by Tenant's cumulative insurance coverage, be it by Tenant's insurance policy, Excess Liability coverage and/or a combination thereof.

12. Waiver of Claims; Indemnification . Tenant waives all claims against Landlord and the Landlord Related Parties for any damage to any property in or about the Property, for any loss of business or income, and for injury to or death of any persons, regardless of the cause of any such loss or event or time of occurrence EVEN IF THE LOSS OR EVENT IS ATTRIBUTABLE TO THE FAULT OR NEGLIGENCE OF THE LANDLORD, OR ANYONE FOR WHOM THE LANDLORD MAY BE RESPONSIBLE, INCLUDING, WITHOUT LIMITATION, LANDLORD RELATED PARTIES, BUT EXPRESSLY EXCLUDING ANY LOSS OR EVENT TO THE EXTENT THAT IS ATTRIBUTABLE TO THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF LANDLORD OR ITS EMPLOYEES . Tenant will indemnify, protect, defend and hold harmless Landlord and the Landlord Related Parties from and against all claims, losses, damages, causes of action, costs, expenses and liabilities, including legal fees, arising out of Tenant’s occupancy of the Premises or presence on the Property, the conduct of Tenant’s business, any default by Tenant, and/or any act, omission or neglect (including violations of Law) of Tenant or its agents, contractors, employees, suppliers, licensees or invitees, successors or assigns (each a “ Tenant Entity ” and collectively, the “ Tenant Entities ”) EXCEPT TO THE EXTENT THE LOSS OR EVENT IS ATTRIBUTABLE TO THE WILLFUL MISCONDUCT OR NEGLIGENCE OF THE LANDLORD, OR ANYONE FOR WHOM THE LANDLORD MAY BE RESPONSIBLE, INCLUDING, WITHOUT LIMITATION, LANDLORD RELATED PARTIES, OR FROM THE BREACH BY LANDLORD OF ANY OF ITS EXPRESS OBLIGATIONS UNDER THIS LEASE . Landlord shall indemnify and hold Tenant harmless from and against any and all claims, liabilities, losses, costs, damages, injuries or expenses, including reasonable attorneys’ and consultants’ fees and court costs, demands, causes of action, or judgments to the extent arising out of or relating to the gross negligence or willful misconduct of Landlord or any Landlord Related Parties or attributable to the breach by Landlord of its express obligations under this Lease (subject to the provisions of Section 11.09). However, notwithstanding anything to the contrary contained herein, Landlord shall in no event be liable for (i) injury to Tenant’s business or any loss of income or profit therefrom or for consequential damages or events of Force Majeure (as defined in Article 26), or (ii) sums up to the amount of insurance proceeds received by Tenant (or which would have been received by Tenant under any insurance coverage required to be maintained by Tenant hereunder) for any loss. The foregoing indemnity by Landlord shall also not be applicable to claims to the extent arising from the negligence or willful misconduct of Tenant or any Tenant Entity. The provisions of this Article 12 shall survive the expiration or earlier termination of this Lease.

13. Hazardous Materials .

13.01 Hazardous Materials ” will mean any substance commonly referred to, or defined in any Law, as a hazardous material or hazardous substance (or other similar term), including but not be limited to, chemicals, solvents, petroleum products, flammable materials, explosives, asbestos, urea formaldehyde, PCB’s, chlorofluorocarbons, freon or radioactive materials. Tenant will not cause or permit any Hazardous Materials to be brought upon, kept, stored, discharged, released or used in, under or about any portion of the Property by Tenant, or its agents without the prior written consent of Landlord, which consent may be withheld or





conditioned in Landlord’s sole discretion; provided, Tenant may bring into the Premises and store and use Hazardous Materials (including, without limitation, items such as cleaning products and copy toner) which are readily available to Tenant by unregulated retail purchase if the same are necessary in Tenant’s normal business operations and subject to all the terms and conditions of this Article 13. If Tenant or any Tenant Entity brings any Hazardous Materials to the Premises or Property, with or without the prior written consent of Landlord (without waiver of the requirement of prior written consent), and in executing this Lease Tenant acknowledges and agrees that by its direct or indirect involvement in the introduction of any Hazardous Materials to the Premises or Property, with or without the consent of the Landlord, that Tenant accepts full and complete responsibility for such Hazardous Materials and henceforth on will be considered the Responsible Party as defined by any applicable governmental authority and/or Law. Further, Tenant shall: (a) use such Hazardous Material only as is reasonably necessary to Tenant’s business, in safe, properly labeled quantities; (b) handle, use, keep, store, and dispose of such Hazardous Material using the highest accepted industry standards and in compliance with all applicable Laws; (c) maintain at all times with Landlord a copy of the most current MSDS sheet for each such Hazardous Material; and (d) comply with such other rules and requirements Landlord may from time to time impose, or with any definition of Hazardous Waste or Law as it may be implemented or modified during or after the term of this Lease. Upon expiration or earlier termination of this Lease, Tenant will, at Tenant’s sole cost and expense, cause all Hazardous Materials brought to the Premises or the Property by Tenant or any Tenant Entity, to be removed from the Property in compliance with any and all applicable Laws.

13.02 If Tenant or any Tenant Entity violates the provisions of this Article 13, or perform any act or omission which contaminates or expands the scope of contamination of the Premises, the Property, or any part thereof, the underlying groundwater, or any property adjacent to the Property, or violates or allegedly violates any applicable Law, then Tenant will promptly, at Tenant’s expense, take all investigatory and/or remedial action (collectively called “ Remediation ”), as directed or required by any governmental authority that is necessary to fully clean up, remove and dispose of such Hazardous Materials and any contamination so caused and shall do so in compliance with any applicable Laws. Tenant will also repair any damage to the Premises and any other affected portion(s) of the Property caused by such contamination and Remediation.

13.03 Tenant shall promptly provide to Landlord written notice of any investigation or claim arising out of the use by Tenant or any Tenant Entity of Hazardous Materials at the Property or the violation of any provision of this Article 13, or alleged violation by Tenant or any Tenant Entity of any Law relating to Hazardous Materials promptly following Tenant’s knowledge of the same and shall keep Landlord fully advised regarding the same. Tenant shall provide to Landlord all reports regarding the release of Hazardous Materials by Tenant or any Tenant Entity at the Property and any incidents regarding the same, regardless of whether any such documentation is considered by Tenant to be confidential. Landlord retains the right to participate in any Remediation and/or legal actions affecting the Property involving Hazardous Materials arising from Tenant’s actual or alleged violation of any provision of this Article 13 or Law.

13.04 Tenant will indemnify, protect, defend and forever hold Landlord, its lenders and ground lessor if any, the Landlord Related Parties, the Premises, the Property, or any portion thereof, harmless from any and all damages, causes of action, fines, losses, liabilities, judgments, penalties, claims, and other costs, including, but not limited to, any Landlord Related Parties’ costs incurred during its participation in any Remediation and/or legal actions as specified in 13.03, arising out of any failure of Tenant or Tenant Entity to observe any covenants of this Article 13 EXCEPT TO THE EXTENT SUCH DAMAGES, CAUSES OF ACTION, FINES, LOSSES, LIABILITIES, JUDGMENTS, PENALTIES, CLAIMS, AND OTHER COSTS WERE CAUSED BY (I) THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF LANDLORD OR ANY LANDLORD RELATED PARTIES, OR (II) THE BREACH BY LANDLORD OF ANY OF ITS EXPRESS OBLIGATIONS UNDER THIS LEASE . All provisions of this Article 13 shall survive the expiration of this Lease and any termination of this Lease or of Tenant’s right of possession.

14. Landlord’s Access . Landlord, its agents, contractors, consultants and employees, will have the right to enter the Premises at any time in the case of an emergency, and otherwise at reasonable times during normal business hours following no less than one (1) business day prior notice and accompanied by an authorized representative of Tenant (provided Tenant makes such representative available at the time Landlord or such other party desires to enter the Premises), to examine the Premises, perform work in the Premises, inspect any Tenant Alterations and/or any Tenant Improvements, show the Premises, exercise any right or remedy, or for any other commercially reasonable purpose. If reasonably necessary, Landlord may temporarily close all or a portion of the Premises to perform repairs, alterations and additions and Tenant shall not have any right to terminate this Lease or abate rent or assert a claim of partial or constructive eviction because of any such closure, provided that Landlord shall use commercially reasonable efforts to conduct such work in a manner designed to minimize unreasonable interference with Tenant’s operations in the Premises. For each of these purposes, Landlord will at all times have and retain any necessary keys. Tenant will not alter any lock or install new or additional locks or bolts on any door in or about the Premises without obtaining Landlord’s prior written approval and will, in each event, furnish Landlord with a new key. Access by Landlord will not give Tenant the right to terminate this Lease, and will be without abatement of rent or liability on the part of Landlord or any Landlord Related Parties.






Notwithstanding the foregoing, Tenant, at its own expense, may provide its own locks to an area within the Premises (" Private Area "). Tenant need not furnish Landlord with a key, but upon the Termination Date or earlier expiration or termination of Tenant’s right to possession, Tenant shall surrender all such keys to the Private Area(s) to Landlord. If Landlord must gain access to a Private Area in a non-emergency situation, Landlord shall contact Tenant, and Landlord and Tenant shall arrange a mutually agreed upon time for Landlord to have such access. If Landlord determines in its sole discretion that an emergency in the Building or the Premises, including, without limitation, a suspected fire or flood, requires Landlord to gain access to the Private Area, Tenant hereby authorizes Landlord to forcibly enter the Private Area. In such event, Landlord shall have no liability whatsoever to Tenant, and Tenant shall pay all reasonable expenses incurred by Landlord in repairing or reconstructing any entrance, corridor, door or other portions of the Premises damaged as a result of a forcible entry by Landlord. In the event Tenant identifies a Private Area within the Premises, Landlord shall have no obligation to provide services (e.g., janitorial services, if applicable) to such Private Area.
15. Damage or Destruction .

15.01 If any portion of the Premises is damaged or destroyed by fire or other casualty, Tenant will promptly give written notice to Landlord of the casualty following Tenant’s knowledge of the same (the “ Tenant’s Casualty Notice ”), including which portion of the Premises and Building(s) were damaged by the casualty (the “ Damaged Building ”). Landlord will, as soon as reasonably possible after Landlord’s receipt of Tenant’s Casualty Notice, deliver to Tenant a good faith estimate (the “ Damage Notice ”) of the time needed to repair the damage caused by such casualty. Landlord will have the right to terminate this Lease as to that portion of the Premises in the Damaged Building by written notice to Tenant within one hundred twenty (120) days following a casualty if any of the following occur: (a) insurance proceeds actually paid, or that will be actually paid, to Landlord and available for use, less any deductible, are not sufficient to pay the full cost to fully repair the damage; (b) Landlord determines that the portion of the Premises in the Damaged Building or the Damaged Building cannot be fully repaired within 180 days from the date restoration commences; (c) a material portion of the Premises is damaged or destroyed within the last 12 months of the Term; (d) Tenant is in Default of this Lease at the time of the casualty; (e) Landlord would be required under this Lease to abate or reduce Tenant’s rent for a period in excess of 6 months if the repairs were undertaken; or (f) the Property, or the Damaged Building in which such portion of the Premises is located, is damaged such that the cost of repair of the same would exceed 10% of the replacement cost of the same. If Landlord elects to terminate this Lease as to that portion of the Premises in the Damaged Building, Landlord will be entitled to retain all applicable Tenant insurance proceeds for damage to all Tenant Improvements and Tenant Alterations, as well as improvements and alterations made to the Premises under the Existing Lease, that are not required to be removed by Tenant at the expiration of this Lease, and Tenant shall assign or endorse over to Landlord (or to any party designated by Landlord) all property insurance proceeds payable to Tenant under Tenant's insurance for damage to all Tenant Improvements and Tenant Alterations, as well as improvements and alterations made to the Premises under the Existing Lease, that are not required to be removed by Tenant at the expiration of this Lease, excepting those attributable to Tenant’s furniture, fixtures, equipment, and any other personal property.

15.02 If this Lease is not terminated pursuant to Sections 15.01 or 15.03, Landlord will repair that portion of the Premises damaged and this Lease shall continue. The repair obligation of Landlord shall be limited to repair of that portion of the Premises damaged excluding any Tenant Improvements, Tenant Alterations, and any personal property and trade fixtures of Tenant. During the period of repair, rent will be abated or reduced in proportion to the degree to which Tenant’s use of the Premises is impaired, as determined by Landlord. However, rent will not be abated if Tenant or any of its agents is the cause of the casualty.

15.03 In addition to Landlord's right to terminate as provided herein, Tenant shall have the right to terminate this Lease as to that portion of the Premises in the Damaged Building only, if: (a) a substantial portion of the Premises in the Damaged Building has been damaged by fire or other casualty and such damage cannot reasonably be repaired (as set forth in the Damage Notice) within 180 days after the date of the casualty; (b) there is less than 1 year of the Term remaining on the date of such casualty; (c) the casualty was not caused by the negligence or willful misconduct of Tenant or its agents, employees or contractors; and (d) Tenant provides Landlord with written notice of its intent to terminate within 30 days after the date of the fire or other casualty. As used herein, the term “a substantial portion of the Premises” means more than 50% of that portion of the Premises located in the Damaged Building.

16. Assignment and Subletting .

16.01 Except for a Permitted Transfer (as defined in Section 16.06 below) Tenant will not, voluntarily or by operation of law, assign, sell, convey, sublet or otherwise transfer all or any part of Tenant’s right or interest in this Lease, or allow any other person or entity to occupy or use all or any part of the Premises (collectively called “ Transfer ”) without first obtaining the written consent of Landlord, which consent shall not be unreasonably withheld, delayed or conditioned. Any Transfer without the prior written consent of Landlord shall be void. Without limiting the generality of the definition of “Transfer,” it is agreed that each of the following shall be deemed a “Transfer” for purposes of this Article 16: (a) an entity other than Tenant becoming the tenant hereunder by merger, consolidation, or other reorganization; and (b) a transfer of a majority of the ownership interest in Tenant (unless Tenant is an entity whose stock is publicly traded). Tenant shall provide to Landlord all information requested by Landlord concerning a Transfer. In no





event shall Tenant mortgage, encumber, pledge or assign for security purposes all or any part of its interest in this Lease. Regardless of whether consent by Landlord is granted in connection with any Transfer, no Transfer shall release Tenant from any obligation or liability hereunder; Tenant shall remain primarily liable to pay all rent and other sums due hereunder to Landlord and to perform all other obligations hereunder. Similarly, no Transfer, with or without the consent of Landlord, shall release any guarantor from its obligations under its guaranty. Except in connection with a Permitted Transfer, upon any assignment or sublease, any rights, options or opportunities granted to Tenant hereunder to extend or renew the Term, to shorten the Term, or to lease additional space shall be null and void.

16.02 In the event Landlord consents to a Transfer, the Transfer will not be effective until Landlord receives a fully executed agreement regarding the Transfer, in a form and of substance reasonably acceptable to Landlord, any documents or information required by such agreement (including any estoppel certificate and any reasonable subordination agreement required by any lender of Landlord), an amount equal to all attorneys’ fees incurred by Landlord (regardless of whether such consent is granted and regardless of whether the Transfer is consummated) and other expenses of Landlord incurred in connection with the Transfer, and a Transfer fee in an amount determined by Landlord, such Transfer fee not to exceed $250.00 during the initial Term.

16.03 Any consideration paid to Tenant for assignment of this Lease (other than in connection with a Permitted Transfer), less any reasonable brokerage commission paid by Tenant with respect to such assignment, shall be immediately paid to Landlord. In the event of a sublease of all or a portion of the Premises, 50% in excess, if any, of all rents payable by the subtenant over rents payable hereunder (allocated on a per square foot basis in the event of a partial sublease) shall be due and payable to Landlord within ten (10) business days after receipt by Tenant; provided, excess rental shall be calculated taking into account straight-line amortization, without interest, of any reasonable brokerage commission and actual out-of-pocket tenant allowances paid by Tenant in connection with the subject sublease transaction, and reasonable attorneys’ fees and costs incurred by Tenant in connection with the subject sublease transaction.

16.04 Except in connection with a Permitted Transfer, Landlord may, within 30 days after submission of Tenant’s written request for Landlord’s consent to a Transfer, terminate this Lease (or, as to a partial subletting, terminate this Lease as to the portion of the Premises proposed to be sublet) as of the date the proposed Transfer was to be effective. If Landlord terminates this Lease as to only a portion of the Premises, then (a) this Lease shall cease as to such portion of the Premises, (b) Tenant shall pay to Landlord all Base Rent and other amounts accrued through the termination date relating to the portion of the Premises covered by the proposed Transfer, and (c) Tenant shall execute, upon request of Landlord, an amendment hereto setting forth matters related to such partial termination. Landlord may physically separate the recaptured portion of the Premises and lease such portion of the Premises to the prospective transferee (or to any other person) without liability to Tenant. Notwithstanding the above, Tenant, within 5 days after receipt of Landlord’s notice of intent to terminate, may withdraw its request for consent to the Transfer. In that event, Landlord’s election to terminate the Lease shall be null and void and of no force and effect .

16.05 Upon the occurrence of a Default, if the Premises or any portion thereof are sublet, Landlord may, at its option and in addition and without prejudice to any other remedies herein provided or provided by Law, collect directly from the sublessee(s) all rentals becoming due Tenant and apply such rentals against other sums due hereunder to Landlord.

16.06 A Transfer to a Permitted Transferee (defined below) in accordance with the following provisions of this Article 16 shall constitute a “ Permitted Transfer ” hereunder. A “Permitted Transferee” means any entity that (i) controls, is controlled by, or is under common control with Tenant, (ii) results from the transfer of all or substantially all of Tenant’s assets or stock, or (iii) results from the merger, consolidation or other reorganization of Tenant with another entity. “ Control ” means the direct or indirect ownership of more than 50% of the voting securities of an entity or possession of the right to vote more than 50% of the voting interest in the ordinary direction of the entity’s affairs. Notwithstanding anything to the contrary contained in this Lease, Landlord’s consent is not required for any assignment of this Lease or sublease of all or a portion of the Premises to a Permitted Transferee so long as the following conditions are met: (A) at least 20 days before any such assignment or sublease, Landlord receives written notice of such assignment or sublease (as well as any documents or information reasonably requested by Landlord regarding the proposed Transfer and the transferee); (B) Tenant is not in Default under this Lease; (C) if the Transfer is an assignment or any other Transfer to a Permitted Transferee other than a sublease, the intended tenant/assignee (if a different entity than the Tenant named herein) assumes in writing all of Tenant’s obligations under this Lease relating to the Premises in form reasonably satisfactory to Landlord or, if the Transfer is a sublease, the intended sublessee accepts the sublease in form satisfactory to Landlord; (D) the intended tenant/transferee has a tangible net worth, as evidenced by financial statements delivered to Landlord and certified by an independent certified public accountant in accordance with generally accepted accounting principles that are consistently applied, at least equal to the Tenant’s net worth at the date of this Lease; (E) the Premises shall continue to be operated solely for the Permitted Use; and (F) Tenant shall pay to Landlord the fee set forth above for approving assignments and subleases and all costs reasonably incurred by Landlord or any Mortgagee (as defined in Article 25 of this Lease) for such assignment or subletting, including, without limitation, reasonable attorneys’ fees. No Transfer to a Permitted Transferee in accordance with this subparagraph shall relieve the Tenant named herein of any obligation under





this Lease or alter the primary liability of Tenant named herein for the payment of rent or for the performance of any other obligation to be performed by Tenant, including the obligations of any guarantor.

17. Default .

Time is of the essence in the performance of all covenants of Tenant. A “ Default ” is defined as any of the following:
17.01 Tenant fails to make, as and when due, any payment of Base Rent, Additional Rent, or any other monetary payment required to be made by Tenant herein, such failure continuing for 5 days after written notice of such failure, as to which time is of the essence, provided that Landlord shall not be required to provide such notice more than twice during the 12 month period commencing with the date of such notice. The third failure to pay any such amount as and when due during such 12-month period shall be a Default hereunder without notice. Such notice shall replace rather than supplement any required statutory notice.

17.02 Landlord discovers that any representation or warranty made by Tenant or any guarantor was materially false when made or that any financial statement of Tenant or of any guarantor of this Lease given to Landlord was materially false, and to the extent curable, such inaccuracy is not cured within ten (10) days after Landlord’s delivery to Tenant of written notice of the same.

17.03 Tenant makes any general arrangement or assignment for the benefit of creditors, becomes a “debtor” in a bankruptcy proceeding, is unable to pay its debts or obligations as they occur, or has an attachment, execution or other seizure of substantially all of its assets located at the Property or its interest in this Lease, or any guarantor becomes insolvent, becomes a “debtor” in a bankruptcy proceeding, fails to perform any obligation under its guaranty, or attempts to revoke its guaranty.

17.04 Tenant fails to observe, perform or comply with any of the non-monetary terms, covenants, conditions, provisions or rules and regulations applicable to Tenant under this Lease other than as specified above in this Article 17; provided, if such failure (a) is not intentional on the part of Tenant, and (b) is, in the reasonable opinion of Landlord, a curable failure, then such failure shall not be a “Default” unless Tenant does not cure such failure within 30 days following written notice of such failure from Landlord. Notwithstanding the foregoing, if Tenant’s failure to comply cannot reasonably be cured within 10 business days, Tenant shall be allowed additional time ( not to exceed 60 days ) as is reasonably necessary to cure the failure so long as Tenant begins the cure within 30 days of the commencement of the failure and diligently pursues the cure to completion. The foregoing Tenant cure period shall in no event apply to any of the following: Tenant’s (i) failure to provide an estoppel certificate when and as required under Section 20 of this Lease; (ii) failure to maintain insurance required under Article 11 of the Lease; (iii) failure to vacate the Premises upon the expiration or earlier termination of the Lease; (iv) failure to comply with any obligation under the Lease pertaining to Hazardous Materials; (v) failure to provide a subordination agreement when and as required under Section 25 of this Lease; (vi) any other matter provided for in another subparagraph of this Article 17 for which another time limit is provided elsewhere in the Lease.

18. Remedies of Landlord .

18.01 During the existence of a Default, Landlord may at its option, without waiver of Default nor any other right or remedy, perform any such duty or obligation on Tenant’s behalf. The costs and expenses of any such performance by Landlord will be immediately due and payable by Tenant upon receipt from Landlord of the reimbursement amount required.

18.02 During the existence of a Default, with or without notice or demand, and without limiting any other of Landlord’s rights or remedies, Landlord may:

(a)
Terminate this Lease, in which case Tenant shall immediately surrender the Premises to Landlord. If Tenant fails to surrender the Premises, Landlord, in compliance with Law, may enter upon and take possession of the Premises and remove Tenant, Tenant’s Property and any party occupying the Premises. Tenant shall pay Landlord, on demand, all past due Rent and other losses and damages Landlord suffers as a result of Tenant’s Default, including, without limitation, an amount equal to all Costs of Reletting (defined below) plus an amount equal to any deficiency that may arise from the total rent that Tenant would have been required to pay for the remainder of the Term had the Lease remained in effect, discounted to present value at the Prime Rate (as defined herein) then in effect minus the rents actually received by Landlord, if any, in connection with reletting the Premises. “ Costs of Reletting ” shall include all reasonable costs and expenses incurred by Landlord in reletting or attempting to relet the Premises, including, without limitation, legal fees, brokerage commissions, the cost of alterations and the value of other concessions or allowances granted to a new tenant.

(b)
Terminate Tenant’s right to possession of the Premises and, in compliance with Law, remove Tenant, Tenant’s Property and any parties occupying the Premises. Landlord may (but shall not be obligated to) relet all or any





part of the Premises, without notice to Tenant, for such period of time and on such terms and conditions (which may include concessions, free rent and work allowances) as Landlord in its absolute discretion shall determine. Landlord may collect and receive all rents and other income from the reletting. Tenant shall pay Landlord on demand all past due Rent, all Costs of Reletting and any an amount equal to any deficiency arising from the total rent that Tenant would have been required to pay for the remainder of the Term, discounted to present value at the Prime Rate then in effect minus the rents actually received by Landlord, if any, in connection with reletting the Premises. The re-entry or taking of possession of the Premises shall not be construed as an election by Landlord to terminate this Lease.

(c)
Pursue any other remedy now or hereafter available to Landlord under the laws or judicial decisions of the state wherein the Premises is located.

18.03 In lieu of calculating damages under Section 18.02, Landlord may elect to receive as damages the sum of (i) all rent accrued through the date of termination of this Lease or Tenant’s right to possession, and (ii) an amount equal to the total rent that Tenant would have been required to pay for the remainder of the Term discounted to present value at the Prime Rate (defined below) then in effect, minus the then present fair rental value of the Premises for the remainder of the Term, similarly discounted, after deducting all anticipated Costs of Reletting. “ Prime Rate ” shall be the per annum interest rate publicly announced as its prime or base rate by a federally insured bank selected by Landlord in the state in which the Building is located.

18.04 In addition to any damages Landlord has a right to recover under Sections 18.02 or 18.03, Landlord shall have the right to (a) reimbursement upon Landlord’s demand to Tenant for any free rent, deferred rent or other Lease execution inducement provided to Tenant for the execution of this Lease and any amendments thereto, and (b) any other losses and damages Landlord suffers as a result of Tenant’s Default, including, without limitation, (i) Landlord's cost of recovering possession of the Premises and removing, storing and disposing of any of Tenant's or other occupant's property left on the Premises after reentry and (ii) if Tenant is in Default of any of its non-monetary obligations under this Lease and Landlord exercises its right under Section 18.01 to perform such obligations, Tenant shall reimburse Landlord for the cost of such performance upon demand together with an administrative charge equal to 10% of the cost of the work performed by Landlord. The repossession or re-entering of all or any part of the Premises shall not relieve Tenant of its liabilities and obligations under this Lease. No right or remedy conferred upon or reserved to Landlord in this Lease is intended to be exclusive of any right or remedy granted to Landlord by statute or common law, and each and every such right and remedy will be cumulative and in addition to any other right and remedy now or subsequently available to Landlord at Law or in equity.

18.05 If Landlord terminates Tenant’s right to possession or Tenant abandons the Premises in violation of the Lease, to the extent (but no further) Landlord is required by applicable Law to mitigate damages, or is required by applicable Law to use efforts to do so, Landlord shall use reasonable efforts to mitigate Landlord’s damages, and Tenant shall be entitled to submit proof of such failure to mitigate as a defense to Landlord’s claims for damages after any such termination of possession. With regard to the provisions of this Lease or the present or future Laws that require Landlord to mitigate or seek to mitigate its damages or to use efforts to re-let the Premises, its is acknowledged by Landlord and Tenant that the state of the law in Texas at the time this Lease is made is uncertain and in order to end all doubt as to what Landlord must and may do to (a) mitigate its damages, (2) seek to mitigate its damages, or (3) re-let or seek to re-let the Premises (hereinafter collectively called “ Mitigate ”), the following are procedures setting forth Landlord’s duty to Mitigate. If all of the procedures set forth below are followed by Landlord, Landlord shall be presumptively deemed to have discharged its duty to Mitigate:

(a)
In order to market the Premises in a suitable condition, Landlord shall be obligated to clean and repaint the Premises and, to the extent, but only to the extent, that Landlord is otherwise obligated to repair and restore the Premises under other provisions of this Lease, Landlord shall repair and restore the Premises. Except for the reasonable cost to clean and repaint the Premises, and except for the cost of repairs and restoration of the Premises that is required of Landlord under this Lease, Landlord shall not be required to spend any money to make the Premises ready for a replacement tenant.
(b)
Landlord shall be obligated to market the Premises in the same manner that Landlord markets, or has previously marketed, other premises for lease in the Building and other buildings in the same geographic area in which the Premises is located that Landlord owns or has previously owned (“ Other Buildings ”); provided, however, Landlord shall only be obligated to incur and pay costs and expenses to procure a replacement tenant that Landlord would ordinarily incur and pay in connection with leasing premises comparable to the Premises, including, without limitation, Landlord’s legal costs to prepare a new lease, and reasonable broker’s fees, and advertising costs.





(c)
All Costs of Reletting (regardless of the success of Landlord’s efforts with respect thereto), shall be repaid to Landlord in full, with interest, before any sums actually received from re-letting are applied to offset any rent due from Tenant to Landlord under this Lease. Tenant agrees that if Landlord re-lets all or any portion of the Premises, any rents received by Landlord under the new lease that exceed the rent due Landlord under this Lease for the same rent payment period for which those rents were paid, shall be applied to the Costs of Reletting and interest payable by Tenant to Landlord. Tenant shall not receive any credit for any excess amounts, but rather Landlord exclusively shall be entitled to the same. Tenant shall continue to be liable for all rent (whether accruing prior to, on or after the date of termination of this Lease or Tenant’s right of possession) and damages, except to the extent that Tenant receives any credit against unpaid rent under Section 18.02 or pleads and proves by clear and convincing evidence that Landlord fails to exercise commercially reasonable efforts to Mitigate to the extent required under this Section and that Landlord’s failure caused an avoidable and quantifiable increase in Landlord’s damages for unpaid rent.
(d)
Landlord shall not be required to accept any person or entity as a tenant (regardless of their operational abilities and credit rating) who is controlling, controlled by or under common control with Tenant or which proposes a change in the use of the Premises permitted under this Lease to a use which: (i) violates any prohibition on use in the Building; (ii) is incompatible with the nature and character of the Building; (iii) creates a parking demand or demand on Building equipment, facilities and systems in excess of the demand created by Tenant; or (iv) conflicts with any other existing tenant use in the Building, or with any use of any person or entity that is at that time a lease prospect of Landlord for other space in the Building.
(e)
Landlord shall not be required to show preference for the Premises over other available lease space, but rather shall let prospects determine which space is most appropriate for their respective needs.
(f)
Landlord shall not be required to relet the Premises to a tenant pursuant to any proposed lease (i) that is not approved by the holders of any liens or security interests in the Building, to the extent such approval is required; (ii) that would cause Landlord to be in default of, or to be unable to perform any of its covenants or obligations under, any agreements between Landlord and any third party; or (iii) that would vary the terms of Landlord’s standard lease form in any manner that is not reasonably acceptable to Landlord. Landlord shall not be required to re-let the Premises for a term longer than the term of this Lease, unless the rents for any period after the end of the term of this Lease are the then prevailing fair market rates; provided, however, that, during any period of re-letting during the term of this Lease, Landlord shall be required to re-let the Premises at a base rental rate that is, at a minimum, equal to the lesser of the prevailing fair market rates and the base rental provided under this Lease.
(g)
Before re-letting the Premises to any replacement tenant, Landlord may require the proposed replacement tenant to demonstrate the same financial capability that Landlord would require from any other lease prospect as a condition to leasing any other space in the Building.
(h)
Landlord may elect to re-let all or any marketable part of the Premises, and reletting of less than all of the Premises shall not be deemed to constitute an acceptance and surrender of the portion of the Premises not so re-let.
(i)
Landlord’s duty to Mitigate shall arise on the earlier of (i) the date that Tenant vacates the Premises and fails to pay rent beyond applicable notice and cure periods (ii) the date Tenant relinquishes any claim to possession of the Premises by written notice to Landlord and (iii) the date on which Landlord terminates Tenant’s right to possession of the Premises pursuant to Section 18.02.
18.06 Tenant agrees that after and during a Default under this Lease, Landlord may enter the Premises under this provision by use of a master key, a duplicate key or any other means to the extent permitted by law and without breaching the peace and change, alter or modify the door locks or other security devices on all entry doors of the Premises thereby permanently excluding Tenant and the Tenant Entities from the Premises. In no event shall Landlord be liable to Tenant for damages in connection with any action or omission by Landlord in connection with Landlord’s exercise of its rights under this Section. Tenant agrees that this provision of the Lease will override and control any conflicting provisions of Sections 93.002 and 93.003 of the TEX. PROP. CODE, as well as any successor statute governing the right of a landlord to change the door locks of a commercial tenant.

18.07 To secure the payment of all rent due and to become due hereunder and the faithful performance of all the other covenants of this Lease required by Tenant to be performed, Tenant hereby gives to Landlord an express contract lien on and security





interest in all property, chattels, or merchandise which may be placed in the Premises and also upon all proceeds of any insurance which may accrue to Tenant by reason of damage to or destruction of any such property. All exemption laws are hereby waived by Tenant. This lien and security interest are given in addition to any Landlord's statutory lien(s) and shall be cumulative thereto. Tenant authorizes Landlord to execute and file Uniform Commercial Code financing statements relating to the aforesaid security interest. If a Default occurs, then Landlord will be entitled to exercise any or all rights and remedies under the Uniform Commercial Code, this Lease or by law and may sell any of the property described above at a public or private sale upon 10 days notice to Tenant, which notice Tenant stipulates is adequate and reasonable. Further, in no event shall any such landlord liens cover intellectual property, files, promissory notes, documents, contracts, instruments or records, and notwithstanding any eviction of Tenant pursuant to the terms of this Lease, Landlord will make such excluded property available to Tenant upon request; provided however, Landlord shall have the right to deem such excluded property as abandoned property after five (5) days’ written notice to Tenant at Tenant’s last known address. Notwithstanding the foregoing, Landlord agrees that, upon written request by Tenant, Landlord will subordinate its statutory and contractual landlord's liens to the liens and security interests securing institutional third party financing of Tenant, pursuant to a subordination agreement signed by Landlord, Tenant and such lenders on Landlord’s form.

19. Condemnation . If the Premises or any portion thereof are taken under the power of eminent domain or sold under the threat of the exercise of said power (collectively, “ Condemnation ”), this Lease shall terminate as to the part taken as of the date the condemning authority takes title or possession, whichever first occurs. If all or a material portion of the rentable area of the Premises are taken by Condemnation, Tenant may, at Tenant’s option, to be exercised in writing within 10 days after Landlord shall have given Tenant written notice of such taking (or in the absence of such notice, within 10 days after the condemning authority shall have taken possession) terminate this Lease as of the date the condemning authority takes such possession. Landlord shall also have the right to terminate this Lease if there is a taking by Condemnation of any portion of the Building or Property which would have a material adverse effect on Landlord’s ability to profitably operate the remainder of the Building. If neither party terminates this Lease in accordance with the foregoing, this Lease shall remain in full force and effect as to the portion of the Premises remaining, except that the Base Rent shall be reduced in proportion to the reduction in utility of the Premises caused by such Condemnation. Condemnation awards and/or payments shall be the property of Landlord, and Tenant hereby assigns any interest it has in such awards and/or payments to Landlord, whether such award shall be made as compensation for diminution in value of the leasehold, the value of the part taken or for severance damages; provided, however, that Tenant may, to the extent allowed by law, claim an award for moving expenses and for the taking of any of Tenant's property (other than its leasehold interest in the Premises) which does not, under the terms of this Lease, become the property of Landlord at the termination hereof, as long as such claim is separate and distinct from any claim of Landlord and does not diminish Landlord's award.

20. Estoppel Certificates; Financial Statements .

20.01    Tenant will execute and deliver to Landlord, within 10 business days after written request from Landlord, a commercially reasonable estoppel certificate to those parties as are reasonably requested by Landlord (including a Mortgagee or prospective purchaser). Without limitation, such estoppel certificate may include a certification as to the status of this Lease, the existence of any default and the amount of rent that is due and payable. Any such estoppel certificate may be relied upon by Landlord and by any actual or prospective buyer or lender of the Property and any other third party designated by Landlord. If Tenant fails to execute and deliver such estoppel certificate within such 10 day period, such estoppel certificate shall be binding on Tenant as prepared.

20.02    Within 10 days after written request from Landlord, Tenant shall deliver to Landlord such financial statements as Landlord reasonably requests regarding Tenant or any assignee, subtenant, or guarantor of Tenant. Tenant represents and warrants to Landlord that each financial statement is a true and accurate statement. Notwithstanding the foregoing, Landlord shall not request financial statements more than once in each consecutive 12 month period during the Term unless (i) Tenant is in Default of this Lease, (ii) Landlord reasonably believes that there has been an adverse change in Tenant's financial position since the last financial statement provided to Landlord, and/or (iii) requested (a) in connection with a proposed sale or transfer of the Building by Landlord, or (b) by an investor of Landlord, any Landlord Related Party or any lender or proposed lender of Landlord or any Landlord Related Party. Notwithstanding the foregoing, so long as Tenant is a publicly traded company on an “over-the-counter” market or any recognized national or international securities exchange, the foregoing shall not apply so long as Tenant’s current public annual report (in compliance with applicable securities laws) for such applicable year is available to Landlord in the public domain.

21. Notices . All communications and notices required under this Lease shall be in writing and shall be addressed to the respective address of the receiving party. All notices to Tenant shall be given by reputable overnight courier, U. S. mail (return receipt required, postage prepaid), or hand delivery, and shall be deemed received on the date of delivery (or attempted delivery) as evidenced by return receipt. Any notice to Tenant may also be given by posting at the Premises and shall be effective upon such posting. At any time during the Term, Landlord or Tenant may specify a different Notice Address (excluding post office boxes) by providing written notification to the other.





22. Holdover . If Tenant remains in possession of all or any part of the Premises with Landlord’s prior written consent after the expiration or termination of this Lease or of Tenant’s right to possession, such possession will constitute a month-to-month tenancy which may be terminated by either Landlord or Tenant upon 30 days written notice and will not constitute a renewal or extension of the Term. If Tenant fails to surrender all or any part of the Premises at the termination of this Lease, occupancy of the Premises after termination shall be that of a tenancy at sufferance. Tenant’s occupancy shall be subject to all the terms and provisions of this Lease, and Tenant shall pay an amount (on a per month basis without reduction for partial months during the holdover) equal to 150% of the sum of the greater of (a) Base Rent and Additional Rent due for the period immediately preceding the holdover, and (b) then-current fair market rent for the Premises as reasonably determined by Landlord. No holdover by Tenant or payment by Tenant after the termination of this Lease shall be construed to extend the Term or prevent Landlord from immediate recovery of possession of the Premises by summary proceedings or otherwise. If Landlord is unable to deliver possession of the Premises to a new tenant or to perform improvements for a new tenant as a result of Tenant’s holdover, Tenant shall be liable for all damages (including, without limitation, consequential, indirect and special) that Landlord suffers from the holdover.

23. Relocation of the Premises . Intentionally omitted.

24. Limitation of Liability . NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS LEASE, THE LIABILITY OF LANDLORD (AND OF ANY SUCCESSOR LANDLORD) SHALL BE LIMITED TO THE LESSER OF (A) THE INTEREST OF LANDLORD IN THE BUILDING, OR (B) THE EQUITY INTEREST LANDLORD WOULD HAVE IN THE BUILDING IF THE BUILDING WERE ENCUMBERED BY THIRD PARTY DEBT IN AN AMOUNT EQUAL TO 80% OF THE VALUE OF THE BUILDING (CALCULATIONS OF EQUITY SHALL BE MADE AS OF THE INITIAL DATE TENANT NOTIFIES LANDLORD OF THE ACTUAL OR ALLEGED DEFAULT OR OTHER CLAIM). TENANT SHALL LOOK SOLELY TO LANDLORD’S INTEREST IN THE BUILDING FOR THE RECOVERY OF ANY JUDGMENT OR AWARD AGAINST LANDLORD OR ANY OF LANDLORD’S TRUSTEES, MEMBERS, PRINCIPALS, BENEFICIARIES, PARTNERS, OFFICERS, DIRECTORS, EMPLOYEES, MORTGAGEES (AS DEFINED IN ARTICLE 25 BELOW) OR OTHER SECURED PARTIES AND AGENTS (EACH A “ LANDLORD RELATED PARTY ”). NEITHER LANDLORD NOR ANY LANDLORD RELATED PARTY SHALL BE PERSONALLY LIABLE FOR ANY JUDGMENT OR DEFICIENCY, AND IN NO EVENT SHALL LANDLORD OR ANY LANDLORD RELATED PARTY BE LIABLE TO TENANT FOR ANY LOST PROFIT, DAMAGE TO OR LOSS OF BUSINESS OR ANY FORM OF SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGE. BEFORE FILING SUIT FOR AN ALLEGED DEFAULT BY LANDLORD, TENANT SHALL GIVE LANDLORD AND ANY MORTGAGEE(S) WHOM TENANT HAS BEEN NOTIFIED HOLD MORTGAGES OR OTHER ENCUMBRANCES ON THE BUILDING, NOTICE AND REASONABLE TIME TO CURE THE ALLEGED DEFAULT.

25. Subordination . Tenant accepts this Lease subject and subordinate to any mortgage(s), deed(s) of trust, ground lease(s) or other lien(s) now or subsequently arising upon the Premises, the Building or the Property, and to renewals, modifications, refinancings and extensions thereof (collectively referred to as a “ Mortgage ”). The party having the benefit of a Mortgage shall be referred to as a “ Mortgagee ”. This clause shall be self-operative, but upon request from a Mortgagee, Tenant shall, within ten (10) business days of request therefor, execute a commercially reasonable subordination, non-disturbance and attornment agreement (“ SNDA ”) in favor of the Mortgagee. As an alternative, a Mortgagee shall have the right at any time to subordinate its Mortgage to this Lease. Upon request, Tenant, without charge, shall attorn to any successor to Landlord’s interest in this Lease. As of the date of this Lease, the Property is not encumbered by a Mortgage. Notwithstanding the foregoing, as a condition precedent to the subordination of this Lease to a future Mortgage, Landlord shall be required to provide Tenant with an SNDA in favor of Tenant from the Mortgagee of such future Mortgage. Such SNDA shall provide that Tenant’s right to possession shall not be disturbed and the other terms of this Lease shall remain in full force and effect notwithstanding the subordination of this Lease to such Mortgage so long as Tenant is not in Default beyond applicable cure periods under this Lease and agrees to attorn to such Mortgagee or any successor under such Mortgage as provided above. Such SNDA shall be subject to such other terms and conditions as the Mortgagee may reasonably require. The reasonable and necessary out of pocket costs incurred by Landlord and any Mortgagee in obtaining such SNDA, including without limitation, attorneys’ fees, shall be borne by Tenant and shall be reimbursed within 10 business days after demand as Additional Rent.

26. Force Majeure . Neither Landlord nor Tenant will be deemed in breach or default of this Lease or have liability to the other, nor will Landlord or Tenant have any right to terminate this Lease, nor will Tenant have any right to abate rent or assert a claim of breach of any covenant of quiet enjoyment or partial or constructive eviction, because of Landlord’s or Tenant’s failure to perform any of their respective obligations under this Lease if the failure is due in part or in full to strikes, acts of God, shortages of labor or materials, war, terrorist acts, civil disturbances and other causes beyond Landlord’s or Tenant’s reasonable control (as applicable “ Force Majeure ”), provided that no event of Force Majeure shall excuse or delay Tenant’s obligation to timely pay rent hereunder. If this Lease specifies a time period for performance of an obligation by Landlord or Tenant, that time period will be extended by the period of any delay in Landlord’s or Tenant’s performance caused by such Force Majeure events as described herein, provided that no event of Force Majeure shall extend the date that any rent is due by Tenant hereunder.






27. Miscellaneous Provisions .

27.01 Whenever the context of this Lease requires, the word “person” shall include any entity, and the singular shall include the plural and the plural shall include the singular. If more than one person or entity is Tenant, the obligations of each such person or entity under this Lease will be joint and several. The terms, conditions and provisions of this Lease will apply to and bind the heirs, successors, executors, administrators and assigns of Landlord and Tenant. No remedy or election hereunder shall be deemed exclusive but shall, whenever possible, be cumulative with all other remedies at law or in equity. Time is of the essence for the performance of each term, condition and covenant of this Lease.

27.02 The captions and headings of this Lease are used for the purpose of convenience only. This Lease contains all of the agreements and conditions made between Landlord and Tenant and may not be modified in any manner other than by a written agreement signed by both Landlord and Tenant. Any statements, promises, agreements, warranties or representations, whether oral or written, not expressly contained herein will in no way bind Landlord and Tenant expressly waives all claims for damages by reason of any statements, promises, agreements, warranties or representations, if any, not contained in this Lease. No provision of this Lease shall be deemed to have been waived by Landlord unless such waiver is in writing signed by a regional vice president or higher title of Landlord or of Landlord’s management company, and no custom or practice which may develop between the parties during the Term shall waive or diminish the Landlord’s right to enforce strict performance by Tenant of any terms of this Lease. Additionally, regardless of Landlord’s knowledge of a default at the time of such acceptance, the acceptance of rent or any other payment by Landlord will not constitute a waiver by Landlord of any default by Tenant. This Lease is governed and construed in accordance with the laws of the state in which the Premises are located, and venue of any legal action will be in the county where the Premises are located.

27.03 This Lease has been fully reviewed by both parties and shall not be strictly or adversely construed against the drafter. If any provision contained herein is determined to be invalid, illegal or unenforceable in any respect, then (a) such provision shall be enforced to the fullest extent allowed, and (b) such invalidity, illegality, or unenforceability will not affect any other provision of this Lease.

27.04 Except (a) as required under Articles 20 and/or 25 of this Lease, (b) as required by applicable law, (c) as reasonably required in connection with any securities filing by Tenant, or (d) in connection with any dispute, lawsuit or other proceeding relating to this Lease, Tenant hereby agrees not to disclose any terms of this Lease to any third-party other than to Tenant’s employees, officers, directors, contractors, attorneys, consultants, lenders, and investors (in each case whether current or prospective) (each a “ Representative ”) who agree to maintain the confidentiality of such terms in accordance with this Section 27.04, without the prior written consent of Landlord (which consent may be withheld in Landlord’s sole discretion). Tenant shall not record this Lease or any short form memorandum hereof. Tenant agrees to defend, indemnify and hold Landlord harmless from and against all claims, damages, liabilities and expenses, including reasonable attorneys' fees and expenses, arising out of any breach of Tenant’s obligations under this Section 27.04 (including a breach by a Representative).

27.05 All obligations of Tenant under this Lease not fully performed as of the expiration or earlier termination of the Term shall survive the expiration or earlier termination of this Lease.

27.06 Landlord and Tenant each warrant to the other that it has not dealt with any broker or agent in connection with this Lease, other than the person(s) listed in the Basic Lease Information. Landlord and Tenant each agree to indemnify the other against all costs, expenses, legal fees and other liability for commissions or other compensation claimed by any other broker or agent by reason of the act or agreement of the indemnifying party. The provisions of this Section 27.06 shall survive the expiration or earlier termination of this Lease.

27.07 The grant of any consent or approval required from Landlord under this Lease shall be proved only by proof of a written document signed and delivered by Landlord expressly setting forth such consent or approval. Unless otherwise specified herein, any such consent or approval may be withheld in Landlord’s sole discretion. Notwithstanding any other provision of this Lease, the sole and exclusive remedy of Tenant for any alleged or actual improper withholding, delaying or conditioning of any consent or approval by Landlord shall be the right to specifically enforce any right of Tenant to require issuance of such consent or approval on conditions allowed by this Lease.

27.08 Tenant agrees to abide by, keep and observe, and shall cause its employees, suppliers, shippers, customers, agents, contractors and invitees to so abide by, keep and observe, all Rules and Regulations set forth in Exhibit C (the “ Rules and Regulations ”) and all additional or amended rules and regulations as in Landlord’s judgment may from time to time be needed for safety and security, for care and cleanliness of the Building and the Project and for the preservation of good order therein and of which Landlord provides written notice to Tenant. Landlord shall use its good faith efforts to apply and enforce the Rules and Regulations in a uniform, non-





discriminatory manner to and against all tenants at the Project, but will not be responsible to Tenant for any nonperformance by any other tenant, occupant or invitee of the Property of any said Rules and Regulations.

27.09 Tenant will not place any signage on or about the Property, or on any part thereof, without the prior written consent of Landlord which shall not be unreasonably withheld, delayed or conditioned. Landlord consents to Tenant maintaining the signage at the Project existing on the date of this Lease to the extent permitted pursuant to the terms of the Existing Lease. All Tenant signage will comply with the terms and conditions of this Lease, the all applicable Laws, and sign criteria for the Building as promulgated by Landlord from time to time and the Rules and Regulations and/or other criteria which Landlord may reasonably establish from time to time.
27.10    If, on account of any Default by Tenant in Tenant’s obligations under the terms and conditions of this Lease, it shall become necessary or appropriate for Landlord to employ or consult with an attorney or collection agency concerning or to enforce or defend any of Landlord’s rights or remedies arising under this Lease or to collect any sums due from Tenant, Tenant agrees to pay all costs and fees so incurred by Landlord, including, without limitation, reasonable attorneys’ fees and costs. If either party institutes a suit against the other for violation of or to enforce any covenant, term or condition of this Lease, the prevailing party shall be entitled to reimbursement of all of its costs and expenses, including, without limitation, reasonable attorneys’ fees.
 
27.11    Tenant represents and warrants to Landlord that each individual executing this Lease on behalf of Tenant is authorized to do so on behalf of Tenant and that Tenant is not (i) in violation of any laws relating to terrorism or money laundering, or (ii) among the individuals or entities identified on any list compiled pursuant to Executive Order 13224 for the purpose of identifying suspected terrorists or on the most current list published by the U.S. Treasury Department Office of Foreign Assets Control at its official website, http://www.treas.gov/ofac/tllsdn.pdf or any replacement website or other replacement official publication of such list. Landlord represents and warrants to Tenant that: (a) each individual executing, attesting and/or delivering this Lease on behalf of Landlord is authorized to do so on behalf of Landlord, and (b) upon execution by Landlord, this Lease will be binding upon Landlord.

27.12    Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING INVOLVING THE PROPERTY OR ARISING OUT OF THIS LEASE.

27.13    Solely for the purpose of effectuating Tenant’s indemnification obligations under this Lease, and not for the benefit of any third parties (including but not limited to employees of Tenant), Tenant specifically and expressly waives any immunity that it may be granted under applicable federal, state or local Worker Compensation Acts, Disability Benefit Acts or other employee benefit acts. Furthermore, the indemnification obligations under this Lease shall not be limited in any way by any limitation on the amount or type of damages, compensation or benefits payable to or for any third party under Worker Compensation Acts, Disability Benefit Acts or other employee benefit acts. The parties acknowledge that the foregoing provisions of this Section have been specifically and mutually negotiated between the parties.

27.14    Landlord and any successor Landlord have the right to sell the Property or any portion of it, or to assign its interest in this Lease, at any time and from time to time. Upon the sale or any other conveyance by Landlord of the Property, or a portion thereof which includes the Premises, Landlord shall be released from all obligations and liability under this Lease arising out of any act, event, occurrence or omission occurring or existing after the date of such conveyance, and in such event Tenant agrees to look solely to the responsibility of the successor in interest of Landlord in and to this Lease.

28. Additional Provisions .

28.01    If the total Base Rent payable during the Term is less than $500,000.00 and Tenant is represented by counsel in connection with this Lease, then Tenant shall execute Exhibit E.
28.02.     Option To Renew.
(a)    Provided this Lease is in full force and effect and Tenant is not in Default under any of the other terms and conditions of this Lease at the time of notification or commencement, Tenant shall have one (1) option to renew (the “ Renewal Option ”) the Term of this Lease for a term of five (5) years (the “ Renewal Term ”), for the portion of the Premises being leased by Tenant as of the date the Renewal Term is to commence, on the same terms and conditions set forth in this Lease, except as modified by the terms, covenants and conditions as set forth below:

(i)    If Tenant elects to exercise the Renewal Option, then Tenant shall provide Landlord with written notice no earlier than the date which is 365 days prior to the expiration of the initial Term of this Lease but no later than the date which is 180 days prior to the expiration of the initial Term of this Lease. If Tenant fails to provide such notice, Tenant shall have no further or additional right to extend or renew the Term of this Lease.






(ii)    During the Renewal Term, the Base Rent shall be the then prevailing market rental rate (including all market concessions such as tenant finish allowance, commissions and abated rent) for space of comparable size, quality and location as of the date the Renewal Option is exercised, taking into account the specific provisions of this Lease which will remain constant. Base Rent during the Renewal Term shall increase, if at all, in accordance with the increases assumed in the determination of the then prevailing market rental rate. Base Rent attributable to the Premises shall be payable in monthly installments in accordance with the terms and conditions of Article 2 of this Lease. Landlord shall advise Tenant of the new Base Rent for the Premises no later than 30 days after receipt of Tenant's written request therefor. Said request shall be made no earlier than 30 days prior to the first date on which Tenant may exercise its Renewal Option under this Section 28.02.

(b)    If Tenant is entitled to and properly exercises its Renewal Option, Landlord shall prepare an amendment (the “ Renewal Amendment ”) to reflect changes in the Base Rent, Term, Termination Date and other appropriate terms as provided above. Tenant shall execute and return the Renewal Amendment to Landlord within 15 days after Tenant’s receipt of same. Tenant’s failure to return a fully executed Renewal Amendment to Landlord within such period shall be deemed a termination by Tenant of its Renewal Option and Tenant shall have no further right to extend the Term of this Lease, but such failure shall not be a default by Tenant under this Lease.

(c)    Except in connection with a Permitted Transfer, the Renewal Option is not transferable; the parties hereto acknowledge and agree that they intend that the Renewal Option shall be “personal” to Tenant as set forth above and that in no event will any assignee or sublessee have any rights to exercise the Renewal Option. If the Renewal Option is validly exercised or if Tenant fails to validly exercise the Renewal Option, Tenant shall have no further right to extend the Term of this Lease.

28.03     Termination of Existing Lease .  Landlord and Tenant acknowledge and agree that Landlord and Tenant are parties to that certain Lease Agreement dated as of October 19, 2001 (as amended, the “ Existing Lease ”).  The parties hereto acknowledge and agree that, notwithstanding any provision to the contrary set forth in the Existing Lease, the Existing Lease is currently in full force and effect, has continued in full force and effect without interruption since the date Tenant initially took occupancy of the Premises under the Existing Lease and that Tenant currently occupies the Premises pursuant to the terms thereof.  In addition, notwithstanding to the contrary contained in the Existing Lease, effective as of 11:59 p.m. (Central Time) on the date immediately preceding the Lease Commencement Date (the “ Existing Lease Termination Date ”) the Existing Lease shall be terminated and of no further force or effect and Landlord and Tenant’s rights and obligations with respect to the Premises arising or accruing thereafter shall be as set forth in this Lease; provided, however, that Landlord and Tenant shall remain liable under the terms of the Existing Lease with respect to (i) any obligations which specifically survive the term of the Existing Lease and (ii) for the performance of all of their respective obligations under the Existing Lease accruing prior to the Existing Lease Termination Date, including, without limitation, with respect to any liability arising on or before such date related to Tenant’s use, occupancy or control of the Premises during the term of the Existing Lease (including, without limitation, with respect to hazardous materials brought onto or about the Premises or permitted or suffered to be brought onto or about the Premises by Tenant or anyone for whom Tenant may be liable and Tenant’s obligation to pay Landlord any amounts due under the Existing Lease).

28.04.     Right of First Refusal. Tenant (but not any assignee, other than a Permitted Transferee, or subtenant) shall have a one time right of first refusal to lease that certain space known as Suite 100 of the McNeil 3 Building containing approximately 14,475 rentable square feet (the “ Right of First Refusal Space ”). In the event a prospective tenant desires to lease the Right of First Refusal Space, or any portion thereof, from Landlord, Landlord shall notify Tenant thereof in the manner provided herein for notice, whereupon Tenant shall have ten (10) days after receipt of such notice to elect-under the same terms and conditions as Landlord was prepared to agree with the prospective tenant-to exercise Tenant’s right of first refusal. In the event Tenant fails to give Landlord written notice of Tenant’s election to lease the Right of First Refusal Space on the terms set forth above within said ten (10) day period, Tenant shall have no further right, title or interest in the Right of First Refusal Space and this right of first refusal shall be of no further force and effect.

28.05.     Quiet Enjoyment. So long as Tenant pays all amounts due hereunder and performs all other covenants and agreements herein set forth and is not in Default (beyond applicable notice and cure periods) hereunder, then Tenant shall peaceably and quietly have, hold and enjoy the Premises for the Term hereof without hindrance or molestation from Landlord or anyone claiming by through or under Landlord, subject to the terms and provisions of this Lease.


[SIGNATURE PAGE TO FOLLOW]






Submission of this Lease for examination and signature by Tenant is not an offer to lease and does not create a reservation or option to lease. This Lease will become effective and binding only upon full execution and delivery by both Tenant and Landlord. THIS LEASE, WHETHER OR NOT EXECUTED BY TENANT, IS SUBJECT TO ACCEPTANCE BY LANDLORD, ACTING BY ITSELF OR BY ITS AGENT BY THE SIGNATURE ON THIS LEASE OF ITS SENIOR VICE PRESIDENT, ASSISTANT VICE PRESIDENT OR REGIONAL MANAGER AND DELIVERY OF AN ORIGINAL OF SUCH SIGNATURE TO TENANT.
Landlord and Tenant have executed this Lease as of the day and year first above written.
 
LANDLORD:
 
 
 
 
 
 
 
 
 
PS Business Parks, L.P., a California limited partnership
 
 
 
 
 
 
 
 
By:
PS Business Parks, Inc., a California corporation
 
 
 
Its:
General partner
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
By:
 
 
 
 
Name:
David Vicars
 
 
 
Title:
Divisional Vice President
 
 
 
 
 
 
 
 
 
 
 
 
TENANT:
 
 
 
 
 
 
 
 
 
Luminex Corporation, a Delaware corporation
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
By:
 
 
 
 
Name:
Harriss Currie
 
 
 
Title:
CFO
 
 
 
 
 
 
 
 
 
 
 
 
Tax ID Number (SSN or FEIN):
 
 
 
 
 
 
 
74-2747608
 
 
 







EXHIBIT A-1
PREMISES

This Exhibit is attached to and made a part of the Lease by and between PS Business Parks, L.P., a California limited partnership (“ Landlord ”) and Luminex Corporation, a Delaware corporation (“ Tenant ”) for space in the Building located at 12201, 12112, 12212, 12100 Technology Blvd., Austin, TX 78727 .








EXHIBIT A-2
BUILDING, PROJECT AND PROPERTY

This Exhibit is attached to and made a part of the Lease by and between PS Business Parks, L.P., a California limited partnership (“ Landlord ”) and Luminex Corporation, a Delaware corporation (“ Tenant ”) for space in the Building located at 12201, 12112, 12212, 12100 Technology Blvd., Austin, TX 78727 .


LEGAL DESCRIPTIONS
TRACT II - McNeil 4 and 5
Lot 10, Amended McNeil Road Commercial Subdivision Section Two, Lots 3 and 10, a subdivision in Travis County, Texas, according to the map or plat recorded in Volume 84, Page 55B, of the Plat Records of Travis County, Texas, and Cabinet F, Slide 44, Plat Records of Williamson County, Texas.
TRACT III - McNeil 3
Lot 4, McNeil Road Commercial Subdivision Section Two, according to the map or plat recorded in Volume 79, Page 5-8, of the Plat Records of Travis County, Texas, and Cabinet D, Slide 264, Plat Records of Williamson County, Texas.

McNeil 6

Lots 3 and 10, McNeil Road Commercial Subdivision, Travis County, TX








EXHIBIT B
TENANT IMPROVEMENTS

This Exhibit is attached to and made a part of the Lease by and between PS Business Parks, L.P., a California limited partnership (“ Landlord ”) and Luminex Corporation, a Delaware corporation (“ Tenant ”) for space in the Building located at 12201, 12112, 12212, 12100 Technology Blvd., Austin, TX 78727 . Capitalized terms not otherwise defined in this Exhibit B shall have the meaning given to such terms in the Lease of which this Exhibit B is a part.
1.    Tenant, following the delivery the full and final execution and delivery of the Lease to which this Exhibit B is attached shall have the right to perform alterations and improvements in the Premises (the “ Tenant Improvements ”). Notwithstanding the foregoing, Tenant and its contractors shall not have the right to perform the Tenant Improvements in the Premises unless and until Tenant has complied with all of the terms and conditions of Article 9 of the Lease, including, without limitation, approval by Landlord of the final plans for the Tenant Improvements and the contractors to be retained by Tenant to perform such Tenant Improvements. So long as Tenant’s written request for consent of the Tenant Improvements contains the following statement in large, bold and capped font “PURSUANT TO EXHIBIT B OF THE LEASE, IF LANDLORD CONSENTS TO THE TENANT IMPROVEMENTS, LANDLORD SHALL NOTIFY TENANT IN WRITING WHETHER OR NOT LANDLORD WILL REQUIRE SUCH IMPROVEMENTS TO BE REMOVED AT THE EXPIRATION OR EARLIER TERMINATION OF THE LEASE.”, at the time Landlord gives its consent for the Tenant Improvements, if it so does, Tenant shall also be notified whether or not Landlord will require that such Tenant Improvements be removed upon the expiration or earlier termination of this Lease. Notwithstanding anything to the contrary contained in this Lease, at the expiration or earlier termination of this Lease and otherwise in accordance with the terms and conditions of this Lease, Tenant shall be required to remove all Tenant Improvements made to the Premises except for any such Tenant Improvements which Landlord expressly indicates or is deemed to have indicated shall not be required to be removed from the Premises by Tenant. If Tenant’s written notice strictly complies with the foregoing and if Landlord fails to so notify Tenant whether Tenant shall be required to remove the subject Tenant Improvements at the expiration or earlier termination of this Lease, Landlord shall be deemed not to require the removal of (and Tenant shall not be obligated to remove) the subject Tenant Improvements. Tenant shall be responsible for all elements of the design of Tenant’s plans (including, without limitation, compliance with law, functionality of design, the structural integrity of the design, the configuration of the Premises and the placement of Tenant’s furniture, appliances and equipment), and Landlord’s approval of Tenant’s plans shall in no event relieve Tenant of the responsibility for such design. Landlord’s approval of the contractors to perform the Tenant Improvements shall not be unreasonably withheld. The parties agree that Landlord’s approval of the general contractor to perform the Tenant Improvements shall not be considered to be unreasonably withheld if any such general contractor (a) does not have trade references reasonably acceptable to Landlord, (b) does not maintain insurance as required pursuant to the terms of the Lease, (c) does not have the ability to be bonded for the work in an amount of no less than 150% of the total estimated cost of the Tenant Improvements, (d) does not provide current financial statements reasonably acceptable to Landlord, or (e) is not licensed as a contractor in the state/municipality in which the Premises is located. Tenant acknowledges the foregoing is not intended to be an exclusive list of the reasons why Landlord may reasonably withhold its consent to a general contractor. Notwithstanding the foregoing, Landlord approves in advance the following contractors and architects to perform work with respect to the Tenant Improvements: (i) Balfour Beatty (general contractor); (ii) Studio 8 (architect); (iii) Bay & Associates (MEP); and (iv) Beckett Electrical (electrical).
2.    Provided Tenant is not in Default under the terms of the Lease, Landlord agrees to contribute the sum of $486,351.00 (the “ Tenant Improvement Allowance ”) toward the cost of performing the Tenant Improvements. The Tenant Improvement Allowance may only be used for the cost of preparing design and construction documents and mechanical and electrical plans for the Tenant Improvements and for hard costs in connection with the Tenant Improvements. The Tenant Improvement Allowance, less a 10% retainage (which retainage shall be payable as part of the final Tenant Improvements, in periodic disbursements within 30 days after receipt of the following documentation: (a) an application for payment and sworn statement of the contractor substantially in the form of AIA Document G-702 covering all work for which disbursement is to be made to a date specified therein; (b) a certification from an AIA architect substantially in the form of the Architect's Certificate for Payment which is located on AIA Document G702, Application and Certificate of Payment; (c) contractor's, subcontractor's and material supplier's final waivers of liens which shall cover all Tenant Improvements for which disbursement is being requested and all other statements and forms required for compliance with the mechanics' lien laws of the state in which the Premises is located, together with all such invoices, contracts, or other supporting data as Landlord or Landlord's Mortgagee may reasonably require; (e) a cost breakdown for each trade or subcontractor performing the Tenant Improvements; (d) plans and specifications for the Tenant Improvements, together with a certificate from an AIA architect that such plans and specifications comply in all material respects with all laws affecting the Building, Property and Premises; (f) copies of all construction contracts for the Tenant Improvements, together with copies of all change orders, if any; and (g) a request to disburse from Tenant containing an approval by Tenant of the work done and a good faith estimate of the cost to complete the Tenant Improvements. Upon completion of the Tenant Improvements, and prior to final disbursement of the Tenant Improvement Allowance, Tenant shall furnish Landlord with: (i) general contractor and architect’s completion affidavits; (ii) full and final waivers of lien; (iii) receipted bills covering all labor and materials expended and used; (iv) as-built plans of the Tenant Improvements; and (v) the certification of Tenant and its architect that the Tenant Improvements have been installed in a good and workmanlike manner in accordance with the approved





plans, and in accordance with applicable Laws. In no event shall Landlord be required to disburse the Tenant Improvement Allowance more than one time per month. If the Tenant Improvements exceed the Tenant Improvement Allowance, Tenant shall be entitled to the Tenant Improvement Allowance in accordance with the terms hereof, but each individual disbursement of the Tenant Improvement Allowance shall be disbursed in the proportion that the Tenant Improvement Allowance bears to the total cost for the Tenant Improvements, less the 10% retainage referenced above. Notwithstanding anything herein to the contrary, Landlord shall not be obligated to disburse any portion of the Tenant Improvement Allowance during the continuance of an uncured Default under the Lease, and Landlord’s obligation to disburse shall only resume when and if such Default is cured.

3.    In no event shall the Tenant Improvement Allowance be used for the purchase of equipment, furniture or other items of personal property of Tenant. If Tenant does not submit a request for payment of the entire Tenant Improvement Allowance to Landlord in accordance with the provisions contained in this Exhibit B by November 30, 2015 , any unused amount shall accrue to the sole benefit of Landlord, it being understood that Tenant shall not be entitled to any credit, abatement or other concession in connection therewith. Tenant shall be responsible for all applicable state sales or use taxes, if any, payable in connection with the Tenant Improvements and/or Tenant Improvement Allowance. Notwithstanding the above, Tenant shall not be allowed to make a submission for disbursement of any portion of the Tenant Improvement Allowance prior to January 31, 2015.

4.    Without limiting the “as-is” provisions of the Lease, Tenant accepts the Premises in its “as-is” condition (subject only to Landlord’s express obligations set forth in the Lease) and acknowledges that Landlord has no obligation to make any changes or improvements to the Premises or, except as provided above with respect to the Tenant Improvement Allowance, to pay any costs expended or to be expended in connection with any such changes or improvements in the Premises.

5.    This Exhibit B shall not be deemed applicable to any additional space added to the Premises at any time or from time to time, whether by any options under the Lease or otherwise, or to any portion of the original Premises or any additions to the Premises in the event of a renewal or extension of the original Term of the Lease, whether by any options under the Lease or otherwise, unless expressly so provided in the Lease or any amendment or supplement to the Lease. Tenant shall not perform any work in the Premises (including, without limitation, cabling, wiring, fixturization, painting, carpeting, replacements or repairs) except in accordance with Article 9 of the Lease.







EXHIBIT C
RULES AND REGULATIONS

This Exhibit is attached to and made a part of the Lease by and between PS Business Parks, L.P., a California limited partnership (“ Landlord ”) and Luminex Corporation, a Delaware corporation (“ Tenant ”) for space in the Building located at 12201, 12112, 12212, 12100 Technology Blvd., Austin, TX 78727 .

Tenant agrees to abide by the following Rules and Regulations and any additional rules and regulations which are adopted pursuant to Section 27.08 of the Lease.

1.
Driveways, sidewalks, halls, passages, exits, entrances, elevators, escalators and stairways shall not be obstructed by tenants or used by tenants for any purpose other than for ingress to and egress from their respective premises. The driveways, sidewalks, halls, passages, exits, entrances, elevators and stairways are not for the use of the general public and Landlord shall in all cases retain the right to control and prevent access thereto by all persons whose presence, in the judgment of Landlord, shall be prejudicial to the safety, character, reputation and interests of the Building, the Property and its tenants, provided that nothing herein contained shall be construed to prevent such access to persons with whom any tenant normally deals in the ordinary course of such tenant’s business unless such persons are engaged in illegal activities. No tenant, and no employees or invitees of any tenant, shall go upon the roof of any Building, except as authorized by Landlord.

2.
No signs, advertisements or notices shall be painted or affixed to windows, doors or other parts of the Building, except those of such color, size, style and in such places as are first approved in writing by Landlord. All tenant identification and suite numbers at the entrance to the Premises shall be installed by Landlord, at Tenant’s cost and expense, using the standard graphics for the Building. Landlord shall have the right to remove any such sign, placard, banner, picture, name, advertisement, or notice without notice to and at the expense of Tenant, which were installed or displayed in violation of this rule. All approved signs or lettering on doors and walls shall be printed, painted, affixed or inscribed at the expense of Tenant by a person or vendor approved by Landlord and shall be removed by Tenant at the time of vacancy at Tenant’s expense. Except in connection with the hanging of lightweight pictures and wall decorations, no nails, hooks or screws shall be inserted into any part of the Premises or Building except by the Building maintenance personnel without Landlord’s prior approval.

3.
The directory of the Building or Property, if any, will be provided exclusively for the display of the name and location of tenants only and Landlord reserves the right to charge for the use thereof and to exclude any other names therefrom.

4.
No curtains, draperies, blinds, shutters, shades, screens or other coverings, awnings, hangings or decorations shall be attached to, hung or placed in, or used in connection with, any window or door on the Premises without the prior written consent of Landlord, which consent shall not be unreasonably withheld, delayed or conditioned. In any event with the prior written consent of Landlord, all such items shall be installed inboard of Landlord’s standard window covering and shall in no way be visible from the exterior of the Building. All electrical ceiling fixtures hung in offices or spaces along the perimeter of the Building must be fluorescent or of a quality, type, design, and bulb color approved by Landlord. No articles shall be placed or kept on the window sills so as to be visible from the exterior of the Building. No articles shall be placed against glass partitions or doors which Landlord considers unsightly from outside Tenant’s Premises.

5.
Each tenant shall be responsible for all persons for whom it allows to enter the Building or the Property and shall be liable to Landlord for all acts of such persons. Landlord and its agents shall not be liable for damages for any error concerning the admission to, or exclusion from, the Building or the Property of any person. During the continuance of any invasion, mob, riot, public excitement or other circumstance rendering such action advisable in Landlord’s opinion, Landlord reserves the right (but shall not be obligated) to prevent access to the Building and the Property during the continuance of that event by any means it considers appropriate for the safety of tenants and protection of the Building, property in the Building and the Property.

6.
Tenant shall not alter any lock or access device or install a new or additional lock or access device or bolt on any door of its Premises, without the prior written consent of Landlord. If Landlord shall give its consent, Tenant shall in each case furnish Landlord with a key for any such lock. Tenant, upon the termination of its tenancy, shall deliver to Landlord the keys for all doors which have been furnished to Tenant, and in the event of loss of any keys so furnished, shall pay Landlord therefor.

7.
The restrooms, toilets, urinals, wash bowls and other apparatus shall not be used for any purpose other than that for which they were constructed and no foreign substance of any kind whatsoever shall be thrown into them. The expense of any breakage, stoppage, or damage resulting from violation of this rule shall be borne by the tenant who, or whose employees or invitees, shall have caused the breakage, stoppage, or damage.





8.
Tenant shall not use or keep in or on the Premises, the Building or the Property any kerosene, gasoline, or inflammable or combustible fluid or material except in strict accordance with the terms of the Lease.

9.
Except with the prior written consent of Landlord, Tenant shall not sell, or permit the sale, at retail, of newspapers, magazines, periodicals, theater tickets or any other goods or merchandise in or on the Premises, nor shall Tenant carry on, or permit or allow any employee or other person to carry on, the business of stenography, typewriting or any similar business in or from the Premises for the service or accommodation of occupants of any other portion of the Building, or the business of a public barber shop, beauty parlor, nor shall the Premises be used for any illegal, improper, immoral or objectionable purpose, or any business or activity other than that specifically provided for in such Tenant’s Lease. Tenant shall not accept hairstyling, barbering, shoeshine, nail, massage or similar services in the Premises or common areas except as authorized by Landlord.

10.
If Tenant requires telegraphic, telephonic, telecommunications, data processing, burglar alarm or similar services, it shall first obtain, and comply with, Landlord’s instructions in their installation. The cost of purchasing, installation and maintenance of such services shall be borne solely by Tenant. Landlord will direct electricians as to where and how telephone, telegraph and electrical wires are to be introduced or installed. No boring or cutting for wires will be allowed without the prior written consent of Landlord. The location of burglar alarms, telephones, call boxes and other office equipment affixed to the Premises shall be subject to the prior written approval of Landlord.

11.
Tenant shall not install any radio or television antenna, satellite dish, loudspeaker or any other device on the exterior walls or the roof of the Building, without Landlord’s consent. Tenant shall not interfere with radio or television broadcasting or reception from or in the Building, the Property or elsewhere.

12.
Tenant shall not lay linoleum, tile, carpet or any other floor covering so that the same shall be affixed to the floor of its Premises in any manner except as approved in writing by Landlord. Tenant shall not place a load upon any floor of its Premises which exceeds the load per square foot which such floor was designed to carry or which is allowed by law.

13.
Tenant shall not operate or permit to be operated a coin or token operated vending machine or similar device (including, without limitation, telephones, lockers, toilets, scales, amusement devices and machines for sale of beverages, foods, candy, cigarettes and other goods), except for machines for the exclusive use of Tenant’s employees and invitees. Bicycles and other vehicles are not permitted inside the Building or on the walkways outside the Building, except in areas designated by Landlord.

14.
Business machines and mechanical equipment belonging to Tenant which cause noise or vibration that may be transmitted to the structure of the Building or to any space therein to such a degree as to be objectionable to Landlord or to any tenants in the Building shall be placed and maintained by Tenant, at Tenant’s expense, on vibration eliminators or other devices sufficient to eliminate noise or vibration. The persons employed to move such equipment in or out of the Building must be acceptable to Landlord. Tenant shall not install, operate or maintain in the Premises or in any other area of the Building, electrical equipment that would overload the electrical system beyond its capacity for proper, efficient and safe operation as determined solely by Landlord. Tenant shall not furnish cooling or heating to the Premises, including, without limitation, the use of electric or gas heating devices, without Landlord’s prior written consent.

15.
Each tenant shall store all its trash and garbage within the interior of the Premises or as otherwise directed by Landlord from time to time. Tenant shall not place in the trash boxes or receptacles any personal trash or any material that may not or cannot be disposed of in the ordinary and customary manner of removing and disposing of trash and garbage in the city, without violation of any law or ordinance governing such disposal.

16.
Canvassing, soliciting, distribution of handbills or any other written material and peddling in the Building and the Property are prohibited and each tenant shall cooperate to prevent the same. No tenant shall make room‑to‑room solicitation of business from other tenants in the Building or the Property, without the written consent of Landlord.

17.
Landlord shall have the right, exercisable without notice and without liability to any tenant, to change the name and address of the Building and the Property. Without the prior written consent of Landlord, Tenant shall not use the name of the Building, Project or the Property or any photograph or other likeness of the Building, Project or the Property in connection with, or in promoting or advertising, Tenant’s business except that Tenant may include the Building’s, Project’s or Property’s name in Tenant’s address.

18.
Landlord may from time to time adopt systems and procedures for the security and safety of the Building and Property, its occupants, entry, use and contents. Tenant, its agents, employees, contractors, guests and invitees shall comply with Landlord’s systems and procedures. Tenant shall comply with all safety, fire protection and evacuation procedures and regulations established by any





governmental agency. Tenant assumes any and all responsibility for protecting its Premises from theft, robbery and pilferage, which includes keeping doors locked and other means of entry to the Premises closed.

19.
No Tenant is allowed to unload, unpack, pack or in any way manipulate any products, materials or goods in the common areas of the Property including the parking and driveway areas of the Property. All products, goods and materials must be manipulated, handled, kept, and stored within the Tenant’s Premises and not in any exterior areas, including, but not limited to, exterior dock platforms, against the exterior of the Building, parking areas and driveway areas of the Property. Tenant also agrees to keep the exterior of the Premises clean and free of nails, wood, pallets, packing materials, barrels and any other debris produced from their operation. All products, materials and goods are to enter and exit the Premises by being loaded or unloaded through dock high doors into trucks and or trailers, over dock high loading platforms into trucks and or trailers or loaded or unloaded into trucks and or trailers within the Premises through grade level door access. Movement in or out of the Building of furniture or office equipment, or dispatch or receipt by Tenant of merchandise or materials requiring the use of elevators, stairways, lobby areas or loading dock areas, shall be restricted to hours reasonably designated by Landlord. Tenant shall obtain Landlord’s prior approval by providing a detailed listing of the activity, which approval shall not be unreasonably withheld. If approved by Landlord, the activity shall be under the supervision of Landlord and performed in the manner required by Landlord. Tenant shall assume all risk for damage to articles moved and injury to any persons resulting from the activity. If equipment, property, or personnel of Landlord or of any other party is damaged or injured as a result of or in connection with the activity, Tenant shall be solely liable for any resulting damage, loss or injury. Tenant shall not make deliveries to or from the Premises in a manner that might interfere with the use by any other tenant of its premises or of the Common Areas, any pedestrian use, or any use which is inconsistent with good business practice.

20.
Smoking of any kind is strictly prohibited, at all times, at any location on the Property, except in the designated smoking area which is located at the OUTSIDE PERIMETER OF THE BUILDING ONLY. Landlord may relocate the designated smoking area at its sole discretion, at any time during the Term of this Lease.

Tenant shall be responsible for the observance of all of the foregoing Rules and Regulations and the Parking Rules and Regulations set forth below by Tenant’s employees, agents, clients, customers, invitees and guests. These Rules and Regulations are in addition to, and shall not be construed to in any way modify, alter or amend, in whole or in part, the terms, covenants, agreements and conditions of any lease of any premises in the Property. Landlord may waive any one or more of these Rules and Regulations for the benefit of any particular tenant or tenants, but no such waiver by Landlord shall be construed as a waiver of such Rules and Regulations in favor of any other tenant or tenants, nor prevent Landlord from thereafter enforcing any such Rules and Regulations against any or all tenants of the Building.







PARKING RULES AND REGULATIONS

1.
Cars must be parked entirely within painted stall lines.

2.
All directional signs and arrows must be observed.

3.
All posted speed limits for the parking areas shall be observed. If no speed limit is posted for an area, the speed limit shall be five (5) miles per hour.

4.
Parking is prohibited:

(a) in areas not striped for parking;

(b) in aisles;

(c) where “no parking” signs are posted;

(d) on ramps;

(e) in cross hatched areas; and

(f) in such other areas as may be designated by Landlord.

5.
Handicap and visitor stalls shall be used only by handicapped persons or visitors, as applicable.

6.
Parking stickers or any other device or form of identification supplied by Landlord from time to time (if any) shall remain the property of Landlord. Such parking identification device must be displayed as requested and may not be mutilated in any manner. The serial number of the parking identification device may not be obliterated. Devices are not transferable and any device may not be obliterated. Devices are not transferable and any device in possession of any unauthorized holder will be void. There will be a replacement charge payable by the parker and such parker’s appropriate tenant equal to the amount posted from time to time by Landlord for loss of any magnetic parking card or any parking sticker.

7.
Every parker is required to park and lock his or her own car. All responsibility for damage to cars or persons is assumed by the parker.

8.
Loss or theft of parking identification devices must be reported to Landlord, and a report of such loss or theft must be filed by the parker at that time. Any parking identification devices reported lost or stolen found on any unauthorized car will be confiscated and the illegal holder will be subject to prosecution. Lost or stolen devices found by the parker must be reported to Landlord immediately to avoid confusion.

9.
Parking spaces are for the express purpose of parking one automobile per space. Washing, waxing, cleaning, or servicing of any vehicle by the parker and/or such person’s agents is prohibited. The parking areas shall not be used for overnight or other storage for vehicles of any type.

10.
Landlord reserves the right to refuse the issuance of parking identification or access devices to any tenant and/or such tenant’s employees, agents, visitors or representatives who willfully refuse to comply with the Parking Rules and Regulations and/or all applicable governmental ordinances, laws, or agreements.

11.
Tenant shall acquaint its employees, agents, visitors or representatives with the Parking Rules and Regulations, as they may be in effect from time to time.

12.
Intentionally omitted.

13.
Intentionally omitted.

14.
Except as provided above, no trucks, truck tractors, trailers or fifth wheel are allowed to be parked anywhere at any time within the Property other than in Tenant’s own truck dock well. Vehicles in violation of the above shall be subject to tow‑away, at vehicle owner’s expense. Vehicles parked in public parking areas will be no larger than full-sized passenger automobiles





or standard pick-up trucks. Landlord reserves the right, without notice to Tenant, to tow away at Tenant’s sole cost and expense any vehicles parked in any parking area for any continuous period of 24 hours or more, or earlier if Landlord, in its sole discretion, determines such parking to be a hazard or inconvenience to other tenants or Landlord, or violates any rules or regulations or posted notices related to parking. Landlord shall not be responsible for enforcing Tenant’s parking rights against third parties. From time to time, Landlord reserves the right, upon written notice to Tenant, to change the location, the availability and nature of parking spaces, establish reasonable time limits on parking, and, on an equitable basis, to assign specific spaces with or without charge to Tenant as Additional Rent.

15.
Tenant shall at all times comply with all applicable Laws (as defined in the Lease) respecting the use of the parking facility serving the Building.

16.
EXCEPT AS PROVIDED IN ARTICLE 12 OF THE LEASE, LANDLORD SHALL NOT BE LIABLE FOR ANY LOSS, INJURY OR DAMAGE TO PERSONS USING THE PARKING FACILITY OR AUTOMOBILES OR OTHER PROPERTY THEREIN, IT BEING AGREED THAT, TO THE FULLEST EXTENT PERMITTED BY LAW, THE USE OF THE SPACES SHALL BE AT THE SOLE RISK OF TENANT AND ITS EMPLOYEES.

17.
Intentionally omitted.

18.
If Tenant, or any Tenant Entity, defaults with respect to the same term or condition under these Parking Rules and Regulations more than 3 times during any 12 month period, and Landlord notifies Tenant thereof promptly after each such default, the next default of such term or condition during the succeeding 12 month period, shall, at Landlord's election, constitute an incurable default and Landlord shall have the right to fine Tenant two hundred fifty dollars ($250.00) for each subsequent violation of these Parking Rules and Regulations and such fines shall be payable by Tenant hereunder as Additional Rent. Such fining rights shall be cumulative and in addition to any other rights or remedies available to Landlord at law or equity, or provided under the Lease (all of which rights and remedies under the Lease are hereby incorporated herein, as though fully set forth); provided however, notwithstanding anything in this Lease to the contrary, Landlord shall not have the right to terminate this Lease solely as the result of a default under these Parking Rules and Regulations. Subject to the limitations set forth in this Section 18, any default by Tenant under these Parking Rules and Regulations shall be a default under the Lease.








EXHIBIT D
OPERATING EXPENSES

This Exhibit is attached to and made a part of the Lease by and between PS Business Parks, L.P., a California limited partnership (“ Landlord ”) and Luminex Corporation, a Delaware corporation (“ Tenant ”) for space in the Building located at 12201, 12112, 12212, 12100 Technology Blvd., Austin, TX 78727 .

1. Operating Expenses. Tenant shall pay Tenant’s Proportionate Share of the total amount of Operating Expenses (defined below) for each calendar year during the Term. Tenant’s Proportionate Share for each Building and Project is set forth in the Basic Lease Information.

1.01 Operating Expenses ” as used in the Lease shall include all costs and expenses related to the ownership, management, operation, maintenance, replacement, improvement and repair of the Premises, Building, Project and/or Property, or any part thereof, incurred by Landlord including but not limited to: (a) Property supplies, materials, labor, equipment, and tools; (b) Utility and Service Costs (as further described in Section 1.03 below), security, janitorial, trash removal, and all applicable service and maintenance agreements; (c) Property related legal, accounting, and consulting fees, costs and expenses, including but not limited to the cost of contests of Real Property Taxes (as further described in Section 1.02 below); (d) Insurance Premiums for all policies deemed necessary by Landlord and/or its lenders, and all deductible amounts under such policies (as further described in Section 1.04 below); (e) costs and expenses of operating, maintaining, and repairing the Property, including but not limited to all interior areas and also driving, parking, loading, and other paved or unpaved areas (including but not limited to, resurfacing and striping and any snow and ice removal Landlord elects to conduct), landscaped areas (including but not limited to, tree trimming), building exteriors (including but not limited to, painting and roof work), signs and directories, and lighting; (f) the costs of any capital improvements and replacements (excluding New HVAC Units) which are for the principal purpose of (i) reducing Operating Expenses, (ii) complying with Laws, rules, regulations, codes or ordinances of any federal, state, municipal, local or other governmental authority enacted after the commencement date of the Existing Lease, or (iii) for health or safety purposes; such costs (together with reasonable interest and financing charges, and installation and related costs) to be amortized based upon an amortization schedule selected by Landlord in its reasonable discretion and consistent with GAAP; (g) compensation (including but not limited to, any payroll taxes, worker’s compensation for employees, and customary employee benefits) of all persons, including independent contractors, who perform duties, or render services on behalf of, or in connection with the Property, or any part thereof, including but not limited to, Property operations, maintenance, repair, and rehabilitation; (h) Property management fees that are in no event greater than 3.5% of gross rents, (i) the cost of providing space used by the Property manager; and (j) Real Property Taxes.
 
Operating Expenses shall exclude the following : (i) Any ground lease rental; (ii) Costs of capital improvements, except as expressly permitted above; (iii) Rentals for items (except when needed in connection with normal repairs and maintenance of permanent systems) which if purchased, rather than rented, would constitute a capital improvement excluded in clause (ii) above; (iv) Costs incurred by Landlord for the maintenance of, or the repair of damage to, the Building and/or Property, to the extent that Landlord is reimbursed by insurance proceeds or warranties or directly by tenants; (v) Costs, including permit, license and inspection costs, incurred with respect to the installation of tenant or other occupant improvements made for tenants or other occupants in the Building and/or the Property or incurred in renovating or otherwise improving, decorating, painting or redecorating vacant space for or the premises of other tenants or other occupants of the Building; (vi) Marketing costs, including leasing commissions, attorneys’ fees in connection with the negotiation and preparation or enforcement of letters, deal memos, letters of intent, leases, subleases and/or assignments, space planning costs, and other costs and expenses incurred in connection with lease, sublease and/or assignment negotiations and transactions with present or prospective tenants or other occupants of the Building or the Property; (vii) Costs incurred by Landlord due to the violation by Landlord of the terms and conditions of any lease of space in the Building; (viii) Except to the extent included in Operating Expenses as provided herein, interest, principal, points and fees on debt or amortization payments on any mortgage or deed of trust or any other debt instrument encumbering the Building or Property or the land on which the Building is situated; (ix) Except for making repairs or keeping permanent systems in operation while repairs are being made, rentals and other related expenses incurred in leasing air conditioning systems, elevators or other equipment ordinarily considered to be of a capital nature; (x) Advertising and promotional expenditures (except for retail property promotions); (xi) Costs incurred in connection with upgrading the Building or Property to comply with disability, life, fire and safety codes in effect prior to the issuance of the temporary certificate of occupancy for the Building; (xii) Interest, fines or penalties incurred as a result of Landlord’s failure to make payments when due unless such failure is commercially reasonable under the circumstances; (xiii) Costs arising from Landlord’s charitable or political contributions; (xiv) The depreciation of the Building and other real property structures on the Property; (xv) Landlord’s general corporate overhead and general administrative expenses not related to the operation of the Building; (xvi) Any bad debt loss, rent loss or reserves for bad debts or rent loss, or reserves for equipment or capital replacement.





Notwithstanding the foregoing, for purposes of computing Tenant's Proportionate Share of Operating Expenses, the Controllable Expenses (hereinafter defined) shall not increase by more than five percent (5%) per calendar year on a compounding and cumulative basis over the course of the initial Term. In other words, Controllable Expenses for the second Lease year of the initial Term shall not exceed one hundred five percent (105%) of the Controllable Expenses for the first Lease year of the initial Term. Controllable Expenses for the third Lease year of the initial Term shall not exceed one hundred five percent (105%) of the limit on Controllable Expenses for the second Lease year of the initial Term, etc. By way of illustration, if Controllable Expenses were $10.00 per rentable square foot for the first Lease year of the initial Term, then Controllable Expenses for the second Lease year shall not exceed $10.50 per rentable square foot, and Controllable Expenses for the third Lease year shall not exceed $11.03 per rentable square foot (whether or not actual Controllable Expenses were less than, equaled or exceeded the limit on Controllable Expenses the prior year). " Controllable Expenses " shall mean all Operating Expenses exclusive of the cost of insurance, utilities, taxes, capital improvements, and the cost of snow removal, refuse removal, costs associated with hurricane and/or other natural disasters clean up, and lawn maintenance.
1.02 Real Property Taxes ” shall include any fee, license fee, tax, levy, charge, or assessment (hereinafter individually and/or collectively referred to as “ Tax ”) imposed by any authority having the direct or indirect power to tax and where such Tax is imposed against the Property, or any part thereof, or Landlord in connection with its ownership or operation of the Property, including but not limited to: (a) any Tax on rent or Tax against Landlord’s business of leasing the Property (including the Texas margin taxes); (b) any Tax by any authority for services or maintenance provided to the Property, or any part thereof, including but not limited to, fire protection, streets, sidewalks, and utilities; (c) any Tax on real estate or personal property levied with respect to the Property, or any part thereof, and any fixtures and equipment and other property used in connection with the Property; (d) any Tax based upon a reassessment of the Property due to a change in ownership or transfer of all or part of Landlord’s interest in the Property; and, (e) any Tax replacing, substituting for, or in addition to any Tax previously included in this definition. Real Property Taxes do not include Landlord’s federal or state net income or franchise taxes (except for the Texas margin taxes). TENANT WAIVES ALL RIGHTS PURSUANT TO ALL LAWS TO PROTEST APPRAISED VALUES OR RECEIVE NOTICE OF REAPPRAISAL REGARDING THE BUILDING OR OTHER PROPERTY OF LANDLORD.

1.03 Utility and Service Costs ” shall include all Landlord incurred utility and service costs and expenses including but not limited to costs related to water and plumbing, electricity, gas, lighting, steam, sewer, waste disposal, and HVAC, and all costs related to plumbing, mechanical, electrical, elevator, HVAC, and other systems.

1.04 Insurance Premiums ” shall include all insurance premiums for all insurance policies maintained by Landlord from time to time related to the Property.

1.05 Throughout the Term, Tenant will pay as Additional Rent its Proportionate Share (of the Project, Property and/or Building, as designated from time to time by Landlord) of Operating Expenses which will be equal to each calendar year’s total Operating Expenses multiplied by Tenant’s Proportionate Share. Estimated payments shall be made monthly on or before the first day of each calendar month each in the amount of Landlord’s then current estimate as outlined below. Tenant’s Proportionate Share will be prorated for partial months. All Operating Expenses that vary with occupancy will be adjusted, at the election of Landlord, to reflect 95% occupancy during any calendar year in which the Project is not fully occupied.

1.06 Tenant’s Proportionate Share of Operating Expenses shall be determined and paid as follows:

(a)
Tenant’s Operating Expense estimates: As soon as is practical following the end of each calendar year, Landlord will provide Tenant with a determination of: (a) Tenant’s annual share of estimated Operating Expenses for the then current calendar year; (b) Tenant’s monthly Operating Expense estimate for the then current year; and, (c) Tenant’s retroactive estimate correction billing (for the period of January 1 st through the date immediately prior to the commencement date of Tenant’s new monthly Operating Expense estimate) for the difference between Tenant’s new and previously billed monthly Operating Expense estimates for the then current year.
(b)
Tenant’s Proportionate Share of actual annual Operating Expenses: Each year, Landlord will provide Tenant with a determination reflecting the total Operating Expenses for the previous calendar year. If the total of Tenant’s Operating Expense estimates billed for the previous calendar year are less than Tenant’s Proportionate Share of the actual Operating Expenses, the determination will indicate the payment amount and date due, but in no event earlier than thirty (30) days from invoice. If Tenant has paid more than its Proportionate Share of Operating Expenses for the preceding calendar year, Landlord will credit the overpayment toward Tenant’s future Operating Expense obligations. Monthly Operating Expense estimates are due on the 1 st of each month and shall commence in the month specified by Landlord. Tenant’s retroactive





estimate correction, and actual annual Operating Expense charges, if any, shall be due, in full, on the date(s) specified by Landlord, but in no event earlier than thirty (30) days from invoice.
2. Tenant shall pay each Operating Expense in accordance with Tenant’s Proportionate Share of the subject Building or Tenant’s Proportionate Share of the Project or the Property, whichever is designated by Landlord. Landlord and Tenant agree that each provision of the Lease for determining charges, amounts and additional rent payments by Tenant (including without limitation, this section) is commercially reasonable, and as to each such charge or amount, constitutes a “method by which the charge is to be computed” for purposes of Section 93.012 (Assessment of Charges) of the Texas Property Code, as such section now exists or as it may be hereafter amended or succeeded.

3. Tenant, within 60 days after receiving Landlord’s determination of Operating Expenses, may give Landlord written notice (“ Review Notice ”) that Tenant intends to review Landlord’s records of the Operating Expenses (excluding Real Property Tax) for the calendar year to which the statement applies. Within a reasonable time after receipt of the Review Notice, Landlord shall make all pertinent records available for inspection that are reasonably necessary for Tenant to conduct its review. If any records are maintained at a location other than the management office for the Building, Tenant may either inspect the records at such other location or pay for the reasonable cost of copying and shipping the records. If Tenant retains an agent to review Landlord’s records, the agent must be with a CPA firm licensed to do business in the state where the Property is located. Tenant shall be solely responsible for all costs, expenses and fees incurred for the audit. Within 90 days after the records are made available to Tenant, Tenant shall have the right to give Landlord written notice (an “ Objection Notice ”) stating in reasonable detail any objection to Landlord’s statement of Operating Expenses for that year. If Tenant fails to give Landlord an Objection Notice within the 90-day period or fails to provide Landlord with a Review Notice within the 60-day period described above, Tenant shall be deemed to have approved Landlord’s determination of Operating Expenses and shall be barred from raising any claims regarding Operating Expenses for that year. If Tenant provides Landlord with a timely Objection Notice, Landlord and Tenant shall work together in good faith to resolve any issues raised in Tenant’s Objection Notice. If Landlord and Tenant determine that Operating Expenses for the calendar year are less than reported, Landlord shall provide Tenant with a credit against the next installment of Tenant’s Proportionate Share of Operating Expenses in the amount of the overpayment by Tenant, or if no further installments of Rent or Tenant’s Proportionate Share of Operating Expenses are due, pay to Tenant the amount of the overpayment in good funds. Likewise, if Landlord and Tenant determine that Operating Expenses for the calendar year are greater than reported, Tenant shall pay Landlord the amount of any underpayment within 30 days. The records obtained by Tenant shall be treated as confidential. In no event shall Tenant be permitted to examine Landlord’s records or to dispute any statement of Operating Expenses unless Tenant has paid and continues to pay all rent when due.








EXHIBIT E

DTPA PROVISIONS

This Exhibit is attached to and made a part of the Lease by and between PS Business Parks, L.P., a California limited partnership (“ Landlord ”) and Luminex Corporation, a Delaware corporation (“ Tenant ”) for space in the Building located at 12201, 12112, 1221, 12100 Technology Blvd., Austin, TX 78727 .


Intentionally deleted






Exhibit 10.26


LUMINEX CORPORATION

AMENDMENT TO EMPLOYMENT AGREEMENT

THIS AMENDMENT TO EMPLOYMENT AGREEMENT is made by and between Russell W. Bradley (the "Executive") and Luminex Corporation, a Delaware corporation (the "Company") effective as of March 30, 2006 (the "Amendment Effective Date").

WITNESSETH:

WHEREAS, the Company entered into an Employment Agreement (the "Employment Agreement") with the Executive dated as of May 22, 2005;

WHEREAS, the Company and the Executive desire to amend the Employment Agreement such that no payments due thereunder would cause Executive to incur any additional tax under Section 409A of the Internal Revenue Code of 1986, as amended;

NOW, THEREFORE, for the reasons set forth above, the Company and the Executive hereby amend the Employment Agreement as follows:

1.     Six Month Delay for Certain Payments . The following new Section 4.8 shall be inserted into the Employment Agreement:

"4.8     Six Month Delay of Certain Payments . In the event the payment of any amounts payable pursuant to this Section 4 or Section 3 hereof within six months of the date of Executive's termination of employment would cause Executive to incur any additional tax under Section 409A of the Internal Revenue Code of 1986, as amended, then payment of such amounts shall be delayed until the date that is six months following Executive's termination date (the "Earliest Payment Date"). If this provision becomes applicable, it is anticipated that payments that would have been made prior to the Earliest Payment Date in the absence of this provision would be paid as a lump sum on the Earliest Payment Date and the remaining severance benefits or other payments would be paid according to the schedule otherwise applicable to the payments."

2.     Certain Definitions . Capitalized terms used in this Amendment not otherwise defined herein shall have the same meaning as set forth in the Employment Agreement.

3.     Counterparts . This Amendment may be executed in counterparts, each of which shall be an original but all of which shall constitute but one document.

IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first stated above.

 
 
LUMINEX CORPORATION
 
 
 
 
 
 
 
 
 
 
 
 
By:
 
 
 
 
Its:
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Russell W. Bradley




Exhibit 10.40


EMPLOYMENT AGREEMENT
 
THIS EMPLOYMENT AGREEMENT (this “ Agreement ”) is made and entered into as of August 14, 2012 (the “ Effective Date ”) by and between Luminex Corporation , a Delaware corporation (“ Luminex ”) and Nancy M. Capezzuti (“ Executive ”).
RECITAL
WHEREAS, Executive is being promoted to the position of the Vice President, Human Resources for Luminex as of the Effective Date above;
WHEREAS, Luminex and Executive wish to document the terms of the employment of Executive in such capacity; and
WHEREAS, Executive has represented to Luminex and Luminex has relied on Executive’s representation that the execution of this Agreement by Executive, and the provision of services by Executive to Luminex as contemplated in this Agreement, will not conflict with, or cause Executive or any other person or entity to be in breach of, (i) any other contract to which Executive is a party or (ii) any duty which Executive may owe to any other person or entity.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Duties .

1.1     Duties . During the term of this Agreement (including all renewal periods, if any, the “ Term ”), Executive agrees to be employed by and to serve as Vice President, Human Resources and Luminex agrees to employ and retain Executive in such capacity subject to the provisions of this Agreement. Executive shall have such powers, authority and duties, and shall render such services of executive and administrative character, or act in such other capacity for Luminex, as the Vice President, General Counsel shall from time to time lawfully direct and Executive shall report directly to the Vice President, General Counsel. Executive shall devote all of his business time, energy, and skill to the business of Luminex.

2. Term and Termination .

2.1     Term . Subject to Section 2.2, the term of employment of Executive by Luminex shall be two (2) years commencing on the Effective Date and shall thereafter automatically renew for successive additional one‑year terms unless either party provides the other with written notice of its intent not to renew this Agreement at least sixty (60) days prior to the end of the Term (unless terminated earlier pursuant to the provisions of this Agreement).

2.2     Termination of Employment .

2.2.1     Termination For Cause . “ Termination For Cause ” shall mean the termination by Luminex of Executive’s employment with Luminex as the result of Executive’s material fraud upon Luminex, violation of the law, or Executive’s material breach of this Agreement after receipt of written notice from Luminex specifying such breach and failure by Executive to cure such breach within fifteen (15) days from receipt of such notice. Executive’s inability to perform his obligations under this Agreement despite his best efforts as a result of a permanent or temporary disability (as evidenced by a written determination from a physician chosen by Executive and reasonably acceptable to Luminex) shall not result in a Termination For Cause. In the event that Executive fails to cure the breach within the fifteen (15) day cure period, the termination shall be effective as of the date that Luminex notifies Executive of his termination following the expiration of the fifteen (15) day cure period. Upon any Termination For Cause, Executive shall be paid the Accrued Obligations (defined below) within three (3) business days following the effective date of termination.

2.2.2     Termination Other Than For Cause . “ Termination Other Than For Cause ” shall mean (i) termination by Luminex of Executive’s employment with Luminex for any reason other than Termination For Cause, Termination by Reason of Death, Termination by Reason of Incapacity or Termination Upon Expiration of Agreement or (ii) termination by Executive upon constructive termination of Executive’s employment with Luminex by reason of (A) a reduction in Executive’s Base Salary (defined below); (B) a reduction in Executive’s title from Vice President, Human Resources for Luminex (whether





by reason of Executive’s removal from any of such offices or Luminex’s failure to reappoint Executive to any of such offices); (C) a Material Diminution (defined below); (D) a requirement that Executive change his principal place of business to a location that is outside the Office Area (defined below), or (E) Luminex’s continued material breach of this Agreement after receipt of written notice from Executive specifying such breach and failure by Luminex to cure such breach within fifteen (15) days from receipt of such notice. Termination Other Than For Cause may be effected by Luminex at any time by providing Executive with written notice of such termination. The termination shall be effective as of the date of the notice or such later date as may be determined by Luminex. Executive may also effect a Termination Other Than For Cause upon written notice to Luminex at any time any of the conditions for constructive termination set forth in clause (ii) above (including without limitation, if applicable, the expiration of the cure period) have been met. Upon any Termination Other Than For Cause, Executive shall be paid (i) within three (3) business days following the effective date of termination the amount of the Accrued Obligations and (ii) all severance compensation provided in Section 4.1. For purposes of this Agreement, “ Material Diminution ” means a material diminution by Luminex of Executive’s duties, powers, authority, functions or responsibilities without Executive’s consent, such that Executive is left with such duties, powers, authority, functions and responsibilities (when viewed in the aggregate) that are materially diminished compared to both (i) those duties, powers, authority, functions and responsibilities conferred upon Executive at the Effective Date and (ii) those duties, powers, authority, functions and responsibilities that are most typically conferred upon the Vice President, Human Resources of companies having both (i) a Vice President, Human Resources and (ii) revenues comparable to Luminex (based on the revenues of Luminex at the time of determination). Luminex and Executive agree that in the event there is an ambiguity with respect to the interpretation or application of the definition of “Material Diminution”, such ambiguity shall be resolved according to the reasonable interpretation of such definition most favorable to Luminex. For purposes of this Agreement, “ Office Area ” means the geographical area within a 40 mile radius of Luminex’s current principal office at 12212 Technology Blvd., Austin, Texas.

2.2.3     Actual Voluntary Termination . “ Actual Voluntary Termination ” shall mean termination by Executive of Executive’s employment with Luminex for any reason other than Termination For Cause, Termination Other Than For Cause, Termination by Reason of Death or Termination by Reason of Incapacity. In the event of an Actual Voluntary Termination, Executive shall be paid within fifteen (15) business days following the effective date of termination the amount of the Accrued Obligations.

2.2.4     Termination by Reason of Incapacity . If, during the Term, Executive shall become Permanently Disabled (defined below), Luminex may terminate Executive’s employment with Luminex effective on the earliest date permitted under applicable law, if any, and such termination shall be deemed “ Termination by Reason of Incapacity ”. Upon termination of employment under this Section, Executive shall be paid (i) within three (3) business days following the effective date of termination the amount of the Accrued Obligations and (ii) all severance compensation provided in Section 4.2. As used herein, Executive shall be deemed “ Permanently Disabled ” if Executive is (i) collecting long-term disability payments under a long-term disability plan established for the benefit of Luminex’s employees or executives generally or a reasonably similar plan or (ii) if, and only if, no such long-term disability plan is in effect at the time of determination, a physician selected by Luminex and reasonably acceptable to Executive makes a written determination that Executive is unable to perform his obligations under this Agreement despite his best efforts by reason of any medically determinable physical or mental impairment that can be expected to result in death or that has lasted or can be expected to last for a continuing period of not less than 12 months.

2.2.5     Termination by Reason of Death . In the event of Executive’s death during the Term, Executive’s employment with Luminex shall be deemed to have terminated as of the date on which his death occurs and the estate of Executive shall be paid (i) within fifteen (15) days following the effective date of termination the amount of the Accrued Obligations and (ii) all severance compensation provided in Section 4.3.

2.2.6     Termination Upon Expiration of Agreement . In the event that Luminex refuses for any reason to extend this Agreement by giving written notice at least 60 days prior to the initial or any renewal period as set forth in Section 2.1, Executive shall be paid (i) within three (3) business days following the effective date of termination the amount of the Accrued Obligations and (ii) all severance compensation provided in Section 4.4. In the event that Executive refuses for any reason (except as otherwise provided herein) to extend this Agreement by giving written notice at least 60 days prior to the initial or any renewal period as set forth in Section 2.1, the termination shall be deemed an Actual Voluntary Termination.

2.2.7     Termination of Relationship with Affiliated Entities . Unless agreed by Luminex (or a subsidiary thereof) and Executive in a separate written agreement (other than corporate minutes, resolutions, charter documents, bylaws and partnership agreements), upon the termination of Executive’s employment with Luminex for any reason, Executive shall tender a written resignation of any positions he may have with Luminex and any and all of Luminex’s direct and indirect subsidiaries.






2.2.8     Definition of Accrued Obligations . As used in this Agreement, “ Accrued Obligations ” means all accrued but unpaid salary, accrued but unpaid vacation, sick leave, and similar pay (all determined in accordance with Luminex’s policies then in effect), and any appropriate business expenses incurred by Executive in connection with his duties hereunder, all to the date of termination.

3. Salary, Benefits and Bonus Compensation .

3.1     Base Salary . As payment for the services to be rendered by Executive as provided in Section 1 and subject to the terms and conditions of Section 2, Luminex agrees to pay to Executive a “ Base Salary ” at the rate of $8,750.00 per each semi-monthly pay period or $210,000 per annum (or such greater amount as may be determined from time to time by the Board or the Compensation Committee thereof) payable in accordance with the then-current payroll policies of Luminex.

3.2     Annual Bonus . Executive shall be eligible to receive a bonus each year in an amount up to at least forty percent (40%) of Executive’s then-current Base Salary (or such other amount as may otherwise be determined by the Vice President, General Counsel), subject to the performance criteria established annually by the Vice President, General Counsel, pro-rated for the first year of his promotion and payable during the first quarter of the following year or otherwise as consistent with the timing of other employee bonuses. The Vice President, General Counsel is under no obligation to declare, and Luminex is under no obligation to pay, any bonus to Executive under the terms of this Agreement. In the event Executive and Luminex are parties to a written agreement or plan executed by both Luminex and Executive that governs bonus arrangements, and the provisions thereof conflict with this Section 3.2, the terms of such other written agreement or plan shall supersede this Section 3.2.

3.3     Change in Control . In the event that both (i) a Change in Control (defined below) of Luminex occurs during the Term and (ii) Executive’s employment with Luminex (or, as applicable, its successor in interest) terminates for any reason (including without limitation an Actual Voluntary Termination by Executive) at any time within six (6) months following the occurrence of the Change in Control of Luminex, in lieu of any Severance Compensation then owed or that otherwise would be owed in the future to Executive under Section 4 of this Agreement, Luminex (or its successor in interest) shall pay Executive both the Accrued Obligations and a lump sum payment (the “ Change in Control Payment ”) in an aggregate amount equal to the sum of (i) the Bonus Amount (defined below), plus (ii) an amount equal to Executive’s annual Base Salary (at the highest rate in effect during the period beginning six months immediately prior to the effective date of the Change of Control through the date of termination) within three (3) business days after the termination of Executive’s employment. In the interest of clarity, Luminex and Executive agree that, upon the termination of Executive’s employment at any time within six (6) months following the occurrence of the Change in Control of Luminex, the provisions of Sections 4.1, 4.2, 4.3, 4.4, and 4.6 shall automatically be deemed null and void and shall not apply with respect to any termination of Executive’s employment (whether such termination is effected in connection with the Change in Control of Luminex or at any time in the future following the Change in Control of Luminex), and under no circumstances shall Luminex ever be obligated to pay Executive both a Change in Control Payment and Severance Compensation under Section 4. For purposes of this Agreement, a “ Change in Control” of Luminex shall be deemed to have occurred if, after the date of this Agreement:

(A)    any “ Person ” (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the “ Exchange Act ”)) (other than an Approved Person (as defined below)) becomes the " Beneficial Owner " (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of a majority or more of the then outstanding Common Stock of Luminex (“Common Stock ”) (such Person, an “ Acquiring Person ”); or
(B)    Luminex merges or consolidates with any other corporation or other entity, in each case other than a merger or consolidation which results in the voting securities of Luminex outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity) at least a majority of the combined voting power of the voting securities of Luminex or such surviving entity outstanding immediately after such merger or consolidation; or
(C)    Luminex sells or disposes of all or substantially all of Luminex’s assets in one transaction or a series of related transactions; or
(D)    Luminex files a periodic or current report or proxy statement with the Securities and Exchange Commission (the “ SEC ”) disclosing that a “change in control” (as such term is used in Item 1 of Form 8-K promulgated by the SEC) of Luminex has occurred; or
(E)    If, as a result of nominations made by a person or group other than the Board of Directors of Luminex, individuals who prior to such nominations constitute the Directors of Luminex cease for any reason to constitute at least a majority thereof within the two year period following such nominations.





As used in this Agreement, “ Approved Person ” means (1) an employee benefit plan of Luminex (or a trustee or other fiduciary holding securities for such a plan), or (2) a corporation owned, directly or indirectly, by the stockholders of Luminex in substantially the same proportions as their ownership of stock of Luminex, or (3) a Person not less than a majority of whose voting securities are Beneficially Owned by Luminex after giving effect to the transaction.
As used in this Agreement, “ Bonus Amount ” means the annual bonus (if any) received or to be received by Executive under Section 3.2 in respect of the then most recently completed calendar year, or if no determination concerning bonuses has been made for the most recently completed calendar year, then the annual bonus (if any) for the previous calendar year.
Any options (“ Options ”) granted (including without limitation Options that may be granted in the future) and restricted stock (“ Restricted Stock ”) issued (including without limitation Restricted Stock that may be issued in the future) to Executive pursuant to any incentive plan of Luminex shall immediately vest upon a Change in Control. Luminex shall take no action to facilitate a transaction involving a Change in Control, including without limitation redemption of any rights issued pursuant to any rights agreement, unless it has taken such action as may be necessary to ensure that Executive has the opportunity to exercise all Options he may then hold, and obtain certificates containing no restrictive legends in respect of any Restricted Stock he may then hold, at a time and in a manner that shall give Executive the opportunity to sell or exchange the securities of Luminex acquired upon exercise of his Options and upon receipt of unrestricted certificates for shares of Common Stock in respect of his Restricted Stock, if any (collectively, the “ Acquired Securities ”), at the earliest time and in the most advantageous manner any holder of the same class of securities as the Acquired Securities is able to sell or exchange such securities in connection with such Change in Control. Luminex acknowledges that its covenants in the preceding sentence (the “ Covenants ”) are reasonable and necessary in order to protect the legitimate interests of Luminex in maintaining Executive as one of its employees and that any violation of the Covenants by Luminex would result in irreparable injuries to Executive, and Luminex therefore acknowledges that in the event of any violation of the Covenants by Luminex or its directors, officers or employees, or any of their respective agents, Executive shall be entitled to obtain from any court of competent jurisdiction temporary, preliminary and permanent injunctive relief in order to (i) obtain specific performance of the Covenants, (ii) obtain specific performance of the exercise of his Options, delivery of certificates containing no restrictive legends in respect of his Restricted Stock and the sale or exchange of the Acquired Securities in the advantageous manner contemplated above or (iii) prevent violation of the Covenants; provided nothing in this Agreement shall be deemed to prejudice Executive’s rights to damages for violation of the Covenants. In the event that the terms of any separate written agreement concerning Options granted or Restricted Stock issued to Executive conflict with the terms of this paragraph, the terms of this paragraph shall control.
3.4     Additional Benefits . During the Term, Executive shall be entitled to the following fringe benefits:

3.4.1     Benefits and Vacation . Executive shall be eligible to participate in such of Luminex’s benefits and deferred compensation plans as are now generally available or later made generally available to executive officers of Luminex. A termination or expiration of this Agreement for any reason or for no reason shall not affect any rights which Executive may have pursuant to any agreement, policy, plan, program or arrangement of Luminex providing Executive benefits (including under any stock option agreement or bonus plan or agreement which may exist), which rights shall be governed by the terms thereof. Executive shall be entitled to four (4) weeks paid vacation each calendar year (prorated for partial years). Unless approved in advance by the Board or a committee thereof, accrued vacation not taken in any applicable period shall not be carried forward or used in any subsequent period.

3.4.2     Reimbursement for Expenses .






3.4.2.1     Incidental Expenses . Luminex shall reimburse Executive for reasonable and properly documented out-of-pocket business and/or entertainment expenses incurred by Executive in connection with his duties under this Agreement. Any such expenses shall be submitted by Executive to Luminex on a periodic basis and will be paid in accordance with standard Luminex policies and procedures.

3.4.2.2     Moving Expenses . In the event of the relocation of Luminex’s headquarters to a location that is outside the Office Area and Executive elects to relocate, Luminex shall (i) reimburse Executive for any reasonable, out-of-pocket and adequately documented moving expenses incurred by Executive in connection with the transfer of his residence and (ii) pay to an Executive an amount of cash reasonably calculated by Luminex to negate adverse income tax consequences to Executive of the foregoing reimbursement.

4. Severance Compensation .

4.1     Severance Compensation in the Event of a Termination Other Than For Cause . In the event Executive’s employment is terminated as a result of a Termination Other Than for Cause, Executive shall be paid (subject to Section 4.6) the Severance Compensation (defined below).

4.2     Severance Compensation for Termination by Reason of Incapacity . In the event Executive’s employment is terminated as a result of a Termination by Reason of Incapacity, Executive shall be paid (subject to Section 4.6) the difference of (i) the Severance Compensation less (ii) any payment or payments received by Executive during the twelve (12) month period from the time of termination under any long-term disability plan in effect that provides benefits to Executive.

4.3     Severance Compensation for Termination by Reason of Death . In the event Executive’s employment is terminated as a result of Executive’s death, the estate of Executive shall be paid the Severance Compensation.

4.4     Severance Compensation In the Event Of A Failure Of Luminex To Renew This Agreement . In the event Luminex fails or otherwise refuses for any reason to extend this Agreement beyond the Term and any extensions thereof, Executive shall be paid (subject to Section 4.6) the Severance Compensation.

4.5     No Severance Compensation Upon Other Termination . In the event of an Actual Voluntary Termination or Termination For Cause, Executive shall not be paid any severance compensation.

4.6     Conditions to Payment; Sole Remedy . Executive shall not be entitled to receive any compensation or other payment pursuant to Sections 4.1, 4.2 or 4.4 unless Executive shall have executed and delivered to Luminex a release substantially in the form attached hereto as Exhibit “A” and, provided Luminex has also signed such release within two (2) business days of execution and delivery by Executive, all revocation and waiting periods applicable to such release have expired (if Luminex fails to sign such release, then such revocation and waiting periods shall not apply). In addition, in the event that Executive breaches any of the restrictive covenants set forth in Article 5 at any time, Luminex shall be entitled to discontinue any compensation or other payments pursuant to Sections 4.1, 4.2 or 4.4 (provided, however, that if it is finally determined by a court of competent jurisdiction or an arbitrator that Luminex asserted in bad faith that Executive breached any of the restrictive covenants set forth in Article 5, the payments of the Severance Compensation shall be extended for two months for each calendar month that payments were delayed. The compensation to be paid to Executive pursuant to Sections 4.1, 4.2, 4.3 or 4.4 shall represent the sole and exclusive remedy of Executive in connection with the termination of his employment and this Agreement upon a Termination Other Than for Cause, a Termination by Reason of Incapacity, a termination in connection with Executive’s death, or a refusal by Luminex to extend this Agreement beyond the Term and any extensions thereof.

4.7     Definition of Severance Compensation . As used in this Agreement, “ Severance Compensation ” means an amount equal to the sum of (i) the Bonus Amount plus (ii) an amount equal to Executive’s annual Base Salary (at the highest rate in effect for the six month period immediately prior to the date of termination), paid in semi‑monthly installments for a period of twelve (12) months from the date of termination. In addition, as part of the Severance Compensation, Luminex also shall pay (until the earlier of (A) the first annual anniversary of the termination of this Agreement or (B) the date that Executive is eligible to be covered under a comparable or more favorable health plan of another Person) (i) COBRA payments in respect of the continuation of health benefits for Executive, his spouse and his children and (ii) payments to fund dental coverage for Executive, his spouse and his children comparable to the dental coverage that they would have received if Executive had continued as an employee of Luminex.






5. Protection of Luminex .

5.1     Non‑Competition . Ancillary to the otherwise enforceable agreements set forth in this Agreement, Executive agrees that during Executive’s employment with Luminex and for a period of one year following termination of employment, whether such termination occurs at the insistence of Executive or Luminex for any reason, Executive shall not compete directly or indirectly in any way with the business of Luminex anywhere in the world where Luminex conducted business during the Term. For purposes of this Agreement, “compete directly or indirectly in any way with the business of Luminex” means to become an employee, consultant, advisor, manager, member, director of or beneficially own more than three percent of any individual, company or entity that competes with Luminex in the Core Business (defined below) at the time of determination. Executive agrees that the assertion or existence of any claim by Executive against Luminex shall not be a defense to the enforcement of this paragraph by injunction or otherwise. As used in this Agreement, “ Core Business ” means the development, manufacturing and/or marketing of multiplexing biological testing technologies with applications in the life-sciences industry.
5.2     Nonsolicitation . Ancillary to the otherwise enforceable agreements set forth in this Agreement, Executive agrees that, for a period of one (1) year subsequent to the termination of Executive’s employment with Luminex, whether such termination occurs at the insistence of Executive or Luminex for any reason, Executive shall not recruit, hire, or attempt to recruit or hire, directly or by assisting others, any other employees of Luminex, nor shall Executive contact or communicate with any other employees of Luminex for the purpose of inducing other employees to terminate their employment with Luminex. For purposes of this covenant, “other employees of Luminex” shall refer to employees who are still actively employed by, or doing business with, Luminex or a subsidiary of Luminex at the time of the attempted recruiting or hiring.
5.3     Remedies . Due to the irreparable and continuing nature of the injury which would result from a breach of the covenants described in Sections 5.1 and 5.2, Executive agrees that Luminex may, in addition to any remedy which Luminex may have at law or in equity, apply to any court of competent jurisdiction for the entry of an immediate order to restrain or enjoin the breach of this covenant and to otherwise specifically enforce the provisions of the covenants set forth in Sections 5.1 and 5.2.
5.4     Acknowledgment . Executive acknowledges and agrees that the restrictions set forth above are ancillary to an otherwise enforceable agreement and supported by independent valuable consideration as required by Tex. Bus. & Comm. Code Ann. § 15.50. Executive further acknowledges and agrees that the limitations as to time, geographical area, and scope of activity to be restrained by Sections 5.1 and 5.2 are reasonable and acceptable to Executive, and do not impose any greater restraint than is reasonably necessary to protect the goodwill and other business interests of Luminex.
5.5     Reformation and Severance . If a judicial determination is made that any of the provisions of the above restriction constitutes an unreasonable or otherwise unenforceable restriction against Executive, it shall be rendered void only to the extent that such judicial determination finds such provisions to be unreasonable or otherwise unenforceable. In this regard, the parties hereby agree that any judicial authority construing this Agreement shall be empowered to sever any portion of the prohibited business activity from the coverage of this restriction and to apply the restriction to the remaining portion of the business activities not so severed by such judicial authority. Moreover, notwithstanding the fact that any provisions of this restriction are determined by a court not to be specifically enforceable through injunctive relief, Luminex shall nevertheless be entitled to seek to recover monetary damages as a result of the breach of any provision which is not reformed by a court. The time period during which the restrictions shall apply shall be tolled and suspended as to Executive for a period equal to the aggregate quantity of time during which Executive violates such prohibitions in any respect.
5.6     Confidential Information and Trade Secrets . As used herein, “ Confidential Information ” means any data or information that is important, competitively sensitive, and not generally known by the public or persons involved in the biological testing or life sciences industries, including, but not limited to, Luminex’s business plans, Prospective Customers, training manuals, proprietary software, product development plans, bidding and pricing procedures, market plans and strategies, projections, internal performance statistics, financial data, confidential personnel information concerning employees of Luminex, operational or administrative plans, policy manuals, and terms and conditions of contracts and agreements. The term “ Confidential Information ” shall not apply to information which is (i) already in Executive’s possession (unless such information was obtained by Executive from Luminex in the course of Executive’s employment by Luminex); (ii) received by Executive from a third party with, to Executive’s knowledge, no restriction on disclosure or (iii) required to be disclosed by any applicable law or by an order of a court of competent jurisdiction.
Executive recognizes and acknowledges that the Confidential Information constitutes valuable, special and unique assets of Luminex and its affiliates. Except as required to perform Executive’s duties as an Executive of Luminex, until such time as they cease to be Confidential Information through no act of Executive in violation of this Agreement, Executive will not use or disclose any Confidential Information of Luminex. Upon the request of Luminex and, in any event, upon the termination of this Agreement for any reason, Executive will surrender to Luminex (i) all memoranda, notes, records, drawings, manuals or other





documents pertaining to Luminex’s business including all copies and/or reproductions thereof and (ii) all materials involving any Confidential Information of Luminex.
5.7     Preservation of Luminex Property . Executive acknowledges that from time to time in the course of employment with Luminex, Executive has had the opportunity to inspect and use certain property of Luminex, both tangible and intangible, including but not limited to files, records, documents, drawings, specifications, lists, equipment, graphics, designs, and similar items relating to the business of Luminex. Executive acknowledges and agrees that all such property, including but not limited to any and all copies thereof, whether prepared by Executive or otherwise in the possession of Executive, are and shall remain the exclusive property of Luminex, that Executive shall have no right or proprietary interest in such property and that Executive will safeguard and return to Luminex all such property upon the earlier of (i) Luminex’s request and (ii) the termination of Executive’s employment with Luminex.
5.8     Assignment of Inventions to Luminex . All computer software, compilations, programs, improvements, inventions, notes, copyrightable works, and opportunities for additional Luminex business, made, fixed, conceived, or acquired by Executive during the Term are exclusively owned by Luminex, are Luminex’s works for hire, and fully assigned to Luminex including without limitation all rights to renewals, extensions, causes of action, reproduce, prepare derivative works, distribute, display, perform, transfer, make, use and sell and may never be copied, used, or disclosed without Luminex’s express written consent. Executive will sign on request any documents affirming the same for any particular item. In addition, Executive agrees to execute Company’s standard Confidentiality and IP Assignment Agreement by the Effective Date.
5.9     Notice to Subsequent Employers . Executive agrees that, prior to commencing any new employment in the Core Business within twelve months after the termination of this Agreement, Executive will furnish the new employer with a copy of this Agreement. Executive also agrees that Luminex may advise any new or prospective employer of the existence and terms of this Agreement and furnish the employer with a copy of this Agreement.
6. Disclosure of Investment s. Commencing upon Executive’s execution of this Agreement and at all times during the Term, Executive shall keep the Board informed in writing of the nature and extent of Executive’s investments, stock holdings, or retention as a director, advisor or any similar interest in any business or enterprise involved in the Core Business other than Luminex; provided, however, that Executive shall not be required to disclose any such investments or stock holdings that constitute less than 1% of such entity’s total obligations or total voting power.

7. Arbitration .

7.1     Exclusive Remedy . Arbitration shall be the sole and exclusive remedy for resolving any claim or dispute which cannot be mutually resolved between the parties to this Agreement with the exception of disputes arising out of Executive’s obligations under Article 5 or disputes arising out of Luminex’s obligations under the last paragraph of Section 3.3, which are not subject to this arbitration provision; provided however, that the parties hereto agree that they may bring action in any court of competent jurisdiction to enforce any award granted pursuant to arbitration or to otherwise enforce this Article 7. This includes, but is not limited to, termination, interpretation or application of this Agreement or any other agreement or policy of Luminex, any claim of violation of law relating to the employment relationship, including, without limitation, any claim of employment discrimination or sexual harassment, or harassment based on any other prohibited basis, or any claim by Luminex against Executive. This Agreement is a waiver of the right to trial by a jury or court.

7.2     Limitations . The request for arbitration must be made within one (1) year from the date of the occurrence giving rise to the dispute or claim; or, in the event of a statutory claim, the time set forth by statute.

7.3     Rules and Procedures . The arbitration will be conducted under the rules and procedures for arbitration of employment disputes of the American Arbitration Association. The arbitration shall take place in Austin, Texas unless the parties mutually agree to another location.

7.4     Arbitrator’s Authority . Upon finding that a claim is meritorious or in favor of one of the parties to the dispute, the arbitrator or arbitrators shall have the authority to order legal and equitable remedies appropriate as permitted by law.

7.5     Expenses . Costs of obtaining and paying the arbiter and the costs associated with conducting the arbitration, including obtaining a facility to be used during the arbitration, shall be paid by Luminex. Other costs of the arbitration or any litigation associated with any dispute arising under or in connection with this Agreement including, without limitation, reasonable attorneys’ and experts’ fees and expenses of Luminex and the Executive shall be borne by the party incurring such expense unless the arbiter or court of law, as the case may be, awards costs to one of the parties.






8. Miscellaneous .

8.1     Waiver . The waiver of the breach of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach of the same or other provision hereof.

8.2     Entire Agreement; Modifications . Except as otherwise provided herein, this Agreement represents the sole, entire, and complete understanding among the parties with respect to the subject matter hereof, and this Agreement supersedes any and all prior understandings, agreements, plans and negotiations, whether written or oral, with respect to the subject matter hereof, including without limitation any understandings, agreements or obligations respecting any past or future compensation, bonuses, reimbursements or other payments to Executive from Luminex. All modifications to the Agreement must be in writing and signed by both Executive and Luminex.

8.3     Notices . All notices and other communications under this Agreement shall be in writing and shall be given by facsimile or first class mail, certified or registered with return receipt requested, and shall be deemed to have been duly given three business days after mailing or one business day after transmission of a facsimile (with confirmation of receipt) to the respective persons named below:

If to Luminex:        Luminex Corporation
Attn: General Counsel
12212 Technology Blvd.
Austin, Texas 78727
Fax: (512) 219-6325

If to Executive:        Nancy M. Capezzuti
37 Cousteau Lane
Austin, TX 78746

Any party may change such party’s address for notices by notice duly given pursuant to this Section 8.3.
8.4     Headings . The Section headings herein are intended for reference and shall not by themselves determine the construction or interpretation of this Agreement.

8.5     Governing Law; Venue . This Agreement shall be governed by and construed in accordance with the laws of the State of Texas. Subject in all respects to Section 7 generally and Section 7.3 in particular, any dispute arising out of or relating to this Agreement may be brought in a court of competent jurisdiction located in Austin, Texas, and both of the parties to this Agreement irrevocably submit to the exclusive jurisdiction of such courts in any such dispute, waives any objection it may now or hereafter have to venue or to convenience of forum, agrees that all claims in respect of the dispute shall be heard and determined only in any such court, and agrees not to bring any dispute arising out of or relating to this Agreement in any other court. The parties agree that either or both of them may file a copy of this paragraph with any court as written evidence of the knowing, voluntary and bargained agreement among the parties irrevocably to waive any objections to venue or to convenience of forum. Process in any dispute may be served on any party anywhere in the world.

8.6     Severability . Should any court of competent jurisdiction determine that any provision of this Agreement is illegal or unenforceable to any extent, such provision shall be enforced to the extent permissible and all other provisions of this Agreement shall continue to be enforceable to the extent possible.

8.7     Counterparts . This Agreement may be executed in one or more counterparts, all of which taken together shall constitute one and the same Agreement.

8.8     Assignment . Neither this Agreement nor any duties or obligations hereunder may be assigned by either party without the other party’s prior written consent; provided, however, that Luminex may assign this Agreement to either (i) a wholly-owned subsidiary of Luminex (provided, however, that such assignment shall not relieve Luminex of its obligations hereunder) or (ii) a Person acquiring substantially all of Luminex’s assets if such acquisition would constitute a Change in Control.

8.9     Withholding . All compensation and benefits payable to Executive hereunder shall be reduced by all federal, state, local and other withholdings and similar taxes and payments required by applicable law.






IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.
 
 
LUMINEX CORPORATION
 
 
 
 
 
 
 
 
 
 
 
 
By:
 
 
 
 
Name:
David Reiter
 
 
 
Title:
Senior Vice President, General Counsel
 
 
 
 
 
 
 
 
EXECUTIVE
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
NANCY M. CAPEZZUTI






Exhibit 10.42

LUMINEX CORPORATION

SECOND AMENDMENT TO EMPLOYMENT AGREEMENT


THIS SECOND AMENDMENT TO EMPLOYMENT AGREEMENT is made by and between Nancy M. Capezzuti ( the “Executive”) and Luminex Corporation , a Delaware corporation (the “Company”) effective as of February 6, 2014 (the “Amendment Effective Date”).

WITNESSETH:

WHEREAS , the Company and Executive originally entered into an employment agreement on August 14, 2012 (“Employment Agreement”);

WHEREAS , the Company and Executive entered into a first amendment to the Employment Agreement on December 31, 2012;

WHEREAS, the Company has offered and Executive has voluntarily agreed to an increased bonus eligibility as specifically set forth herein;

NOW, THEREFORE, for the reasons set forth above, the Company and the Executive hereby amend the Employment Agreement as follows:

1. Annual Bonus . Section 3.2 shall be deleted in its entirety and replaced with a new Section 3.2 as follows:

“Sec. 3.2 Annual Bonus . Beginning in Calendar Year 2014, Executive shall be eligible to receive a bonus each year in an amount up to at least fifty percent (50%) of Executive’s then-current Base Salary (or such other amount as may otherwise be determined by the Senior Vice President, General Counsel), subject to the performance criteria established annually by the Senior Vice President, General Counsel and payable during the first quarter of the following year or otherwise as consistent with the timing of other employee bonuses. The Senior Vice President, General Counsel is under no obligation to declare, and Luminex is under no obligation to pay, any bonus to Executive under the terms of this Agreement. In the event Executive and Luminex are parties to a written agreement or plan executed by both Luminex and Executive that governs bonus arrangements, and the provisions thereof conflict with this Section 3.2, the terms of such other written agreement or plan shall supersede this Section 3.2.”

2. Certain Definitions . Capitalized terms used in this Amendment not otherwise defined herein shall have the same meaning as set forth in the Employment Agreement.

3. Counterparts . This Amendment may be executed in counterparts, each of which shall be an original but all of which shall constitute but one document.

Except as specifically set forth herein, all terms and conditions of the Employment Agreement, as amended and restated herein, shall remain in full force and effect. Executive acknowledges that he has read and understands this Second Amendment to the Employment Agreement, and has had ample opportunity to consider its terms.






IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first stated above.

 
 
LUMINEX CORPORATION
 
 
 
 
 
 
 
 
 
 
 
 
By:
 
 
 
 
Its:
 
 
 
 
Date:
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Nancy M. Capezzuti
 
 
Date:
 
 




Exhibit 10.43


LUMINEX CORPORATION

THIRD AMENDMENT TO EMPLOYMENT AGREEMENT


THIS THIRD AMENDMENT TO EMPLOYMENT AGREEMENT is made by and between Nancy M. Fairchild ( formerly Nancy M. Capezzuti, the “Executive”) and Luminex Corporation , a Delaware corporation (the “Company”) effective as of January 1, 2015 (the “Amendment Effective Date”).

WITNESSETH:

WHEREAS , the Company and Executive originally entered into an employment agreement on August 14, 2012 (“Employment Agreement”);

WHEREAS , the Company and Executive entered into a first amendment to the Employment Agreement on December 31, 2012;

WHEREAS , the Company and Executive entered into a second amendment to the Employment Agreement on February 6, 2014;

WHEREAS, the Company has offered and Executive has voluntarily agreed a new position of Senior Vice President, Human Resources as specifically set forth herein;

NOW, THEREFORE, for the reasons set forth above, the Company and the Executive hereby amend the Employment Agreement as follows:

1. Duties. Section 1 shall be deleted in its entirety and replaced with a new Section 1 as follows:

“Sec. 1 Duties . During the term of this Agreement (including all renewal periods, if any, the “ Term ”), Executive agrees to be employed by and to serve as Senior Vice President, Human Resources and Luminex agrees to employ and retain Executive in such capacity subject to the provisions of this Agreement. Executive shall have such powers, authority and duties, and shall render such services of executive and administrative character, or act in such other capacity for Luminex, as the Chief Executive Officer and the Board of Directors shall from time to time lawfully direct and Executive shall report directly to the Chief Executive Officer. Executive shall devote all of his business time, energy, and skill to the business of Luminex.”

2. Base Salary . Section 3.1 shall be deleted in its entirety and replaced with a new Section 3.1 as follows:
“Sec. 3.1 Base Salary . As payment for the services to be rendered by Executive as provided in Section 1 and subject to the terms and conditions of Section 2, Luminex agrees to pay to Executive a “Base Salary” at the rate of $10,416.67 per each semi-monthly pay period or $250,000 per annum (or such greater amount as may be determined from time to time by the Board or the Compensation Committee thereof) payable in accordance with the then-current payroll policies of Luminex.

3. Annual Bonus . Section 3.2 shall be deleted in its entirety and replaced with a new Section 3.2 as follows:
“Sec. 3.2 Annual Bonus . Executive shall be eligible to receive a bonus each year in an amount up to at least fifty percent (50%) of Executive’s then-current Base Salary (or such other amount as may otherwise be determined by the Board of Directors), subject to the performance criteria established annually by the Chief Executive Officer and the Board of Directors, payable during the first quarter of the following year or otherwise as consistent with the timing of other employee bonuses. The Board of Directors is under no obligation to declare, and Luminex is under no obligation to pay, any bonus to Executive under the terms of this Agreement. In the event Executive and Luminex are parties to a written agreement or plan executed by both Luminex and Executive that governs bonus arrangements, and the provisions thereof conflict with this Section 3.2, the terms of such other written agreement or plan shall supersede this Section 3.2.
4. Certain Definitions . Capitalized terms used in this Amendment not otherwise defined herein shall have the same meaning as set forth in the Employment Agreement.






5. Counterparts . This Amendment may be executed in counterparts, each of which shall be an original but all of which shall constitute but one document.

Except as specifically set forth herein, all terms and conditions of the Employment Agreement, as amended and restated herein, shall remain in full force and effect. Executive acknowledges that he has read and understands this Third Amendment to the Employment Agreement, and has had ample opportunity to consider its terms.

IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first stated above.

 
 
LUMINEX CORPORATION
 
 
 
 
 
 
 
 
 
 
 
 
By:
 
 
 
 
Its:
 
 
 
 
Date:
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Nancy M. Fairchild
 
 
Date:
 
 





Exhibit 10.44


LUMINEX CORPORATION

THIRD AMENDMENT TO EMPLOYMENT AGREEMENT


THIS THIRD AMENDMENT TO EMPLOYMENT AGREEMENT is made by and between Russell W. Bradley (the “Executive”) and Luminex Corporation , a Delaware corporation (the “Company”) effective as of January 1, 2015 (the “Amendment Effective Date”).

WITNESSETH:

WHEREAS , the Company and Executive originally entered into an employment agreement on May 22, 2005 (“Employment Agreement”);

WHEREAS , the Company and Executive entered into a first amendment to the Employment Agreement on March 30, 2006;

WHEREAS , the Company and Executive entered into a second amendment to the Employment Agreement on December 31, 2012;

WHEREAS, the Company has offered and Executive has voluntarily agreed a new position of Senior Vice President, Corporate Development, Chief Marketing and Sales Officer as specifically set forth herein;

NOW, THEREFORE, for the reasons set forth above, the Company and the Executive hereby amend the Employment Agreement as follows:

1. Duties. Section 1 shall be deleted in its entirety and replaced with a new Section 1 as follows:

“Sec. 1 Duties . During the term of this Agreement (including all renewal periods, if any, the “ Term ”), Executive agrees to be employed by and to serve as Senior Vice President, Corporate Development, Chief Marketing and Sales Officer and Luminex agrees to employ and retain Executive in such capacity subject to the provisions of this Agreement. Executive shall have such powers, authority and duties, and shall render such services of executive and administrative character, or act in such other capacity for Luminex, as the Chief Executive Officer and the Board of Directors shall from time to time lawfully direct and Executive shall report directly to the Chief Executive Officer. Executive shall devote all of his business time, energy, and skill to the business of Luminex.”

2. Base Salary . Section 3.1 shall be deleted in its entirety and replaced with a new Section 3.1 as follows:
“Sec. 3.1 Base Salary . As payment for the services to be rendered by Executive as provided in Section 1 and subject to the terms and conditions of Section 2, Luminex agrees to pay to Executive a “Base Salary” at the rate of $14,828.67 per each semi-monthly pay period or $355,888 per annum (or such greater amount as may be determined from time to time by the Board or the Compensation Committee thereof) payable in accordance with the then-current payroll policies of Luminex.

3. Annual Bonus . Section 3.2 shall be deleted in its entirety and replaced with a new Section 3.2 as follows:

“Sec. 3.2 Annual Bonus . Executive shall be eligible to receive a bonus each year in an amount up to at least fifty percent (50%) of Executive’s then-current Base Salary (or such other amount as may otherwise be determined by the Board of Directors), subject to the performance criteria established annually by the Chief Executive Officer and the Board of Directors, payable during the first quarter of the following year or otherwise as consistent with the timing of other employee bonuses. The Board of Directors is under no obligation to declare, and Luminex is under no obligation to pay, any bonus to Executive under the terms of this Agreement. In the event Executive and Luminex are parties to a written agreement or plan executed by both Luminex and Executive that governs bonus arrangements, and the provisions thereof conflict with this Section 3.2, the terms of such other written agreement or plan shall supersede this Section 3.2.





4. Certain Definitions . Capitalized terms used in this Amendment not otherwise defined herein shall have the same meaning as set forth in the Employment Agreement.

5. Counterparts . This Amendment may be executed in counterparts, each of which shall be an original but all of which shall constitute but one document.

Except as specifically set forth herein, all terms and conditions of the Employment Agreement, as amended and restated herein, shall remain in full force and effect. Executive acknowledges that he has read and understands this Third Amendment to the Employment Agreement, and has had ample opportunity to consider its terms.

IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first stated above.

 
 
LUMINEX CORPORATION
 
 
 
 
 
 
 
 
 
 
 
 
By:
 
 
 
 
Its:
 
 
 
 
Date:
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Russell W. Bradley
 
 
Date:
 
 





Exhibit 10.45

        
Omnibus Amendment to the
Luminex Corporation
Restricted Share Unit Award Agreements
(2012 and 2013 LTIPs)

This Omnibus Amendment to the Luminex Corporation Restricted Share Unit Award Agreements (2012 and 2013 LTIPs) is made and entered into as of the 5th day of February, 2015, by and between Luminex Corporation, a Delaware corporation (the “ Company ”), and Harriss T. Currie (the “ Officer ”).

WHEREAS , pursuant to the Luminex Corporation 2012 Long Term Incentive Plan and the Luminex Corporation 2013 Long Term Incentive Plan, the Company has previously granted Performance Awards of Restricted Share Units to the Officer pursuant to Restricted Share Unit Award Agreements (collectively, the “ Award Agreements ”);

WHEREAS , pursuant to Section 7 of each Award Agreement, the Compensation Committee of the Board of Directors of the Company (the “ Compensation Committee ”) and the Officer may amend the Award Agreements; and

WHEREAS , the Compensation Committee and the Officer have determined that it would be in the best interest of the Company and its stockholders to amend each Award Agreement as provided below to remove certain tax gross-up provisions contained therein.

NOW, THEREFORE , each of the Award Agreements is hereby amended as follows:

1.     Amendment to Section 4 . Section 4 of each Award Agreement is hereby amended by deleting such section and replacing it in its entirety with the following:

“ 4. Intentionally Omitted .”

2.    Capitalized terms used herein but not defined herein shall have the meanings set forth in the Award Agreements.

3.    All other provisions of the Award Agreements shall remain in full force and effect, except to the extent modified by the foregoing.
    
IN WITNESS WHEREOF , the undersigned have duly executed this Omnibus Amendment to the Luminex Corporation Restricted Share Unit Award Agreements (2012 and 2013 LTIPs) as of the date first written above.



                        
 
 
 
 
 
 
 
 
Harriss T. Currie
 
 
 
 
 
 
 
 
 
LUMINEX CORPORATION
 
 
 
 
 
 
 
 
 
 
 
 
 
By:
 
 
 
 
Name:
Nachum Shamir
 
 
 
Title:
President and Chief Executive Officer
 







Exhibit 21.1

LIST OF SUBSIDIARIES

Luminex International, Inc., a Delaware corporation
Luminex B.V., a Netherlands Private Company with limited liability
Luminex 2 B.V., a Netherlands Private Company with limited liability
Luminex 3 B.V., a Netherlands Private Company with limited liability
Luminex Debt Holding, LLC, a Delaware limited liability company
Luminex Molecular Diagnostics, Inc., an Ontario, Canadian corporation
Luminex Trading (Shanghai) Company Limited, a limited liability company under the laws of the PRC
Luminex Japan Corporation Ltd., a Japanese KK
Luminex (Australia) Pty. Ltd, an Australian Proprietary company, limited by shares (d/b/a BSD Robotics)
Labpac Pty Ltd, an Australian Proprietary company, limited by shares
Bizpac (Australia) Pty Ltd., an Australian Proprietary company, limited by shares
Luminex Hong Kong Limited, a Hong Kong company limited by shares







Exhibit 23.1

Consent of Independent Registered Public Accounting Firm

We consent to the incorporation by reference in the Registration Statement (Form S-8 No. 333-181485) pertaining to the Luminex Corporation Employee Stock Purchase Plan, in the Registration Statement (Form S-8 No. 333181484) pertaining to the Luminex Corporation Second Amended and Restated 2006 Equity Incentive Plan, in the Registration Statement (Form S-8 No. 333-141042) pertaining to the Tm Bioscience Corporation Share Option Plan, in the Registration Statement (Form S-8 No. 333-134450) pertaining to the Luminex Corporation 2006 Equity Incentive Plan and the Luminex Corporation 2006 Management Stock Purchase Plan, in the Registration Statement (Form S-8 No. 333-46686) pertaining to the 2000 Long-Term Incentive Plan of Luminex Corporation, in the Registration Statement (Form S-8 No. 333-87918) pertaining to the 2001 Broad-Based Stock Option Plan of Luminex Corporation, in the Registration Statement (Form S-8 No. 333-118772) pertaining to the Balthrop Non-Qualified Stock Option Agreement of Luminex Corporation, in the Registration Statement (Form S-8 No. 333-159382) pertaining to the Amended and Restated 2006 Equity Incentive Plan and in the Registration Statement (Form S-3 No. 333-151691) pertaining to the Automatic Shelf Registration of Securities of Luminex Corporation of our reports dated February 25, 2015, with respect to the consolidated financial statements of Luminex Corporation, and the effectiveness of internal control over financial reporting of Luminex Corporation, included in this Annual Report (Form 10-K) for the year ended December 31, 2014.


/s/ Ernst & Young LLP
Austin, Texas
February 25, 2015






Exhibit 31.1
CERTIFICATIONS


I, Nachum Shamir, certify that:

1. I have reviewed this report on Form 10-K of Luminex Corporation;

2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

4. The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:

a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

5. The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):

a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.


Date: February 25, 2015

 
By:
/s/ Nachum Shamir
 
 
Nachum Shamir

 
 
President and Chief Executive Officer






Exhibit 31.2

CERTIFICATIONS

I, Harriss T. Currie, certify that:

1. I have reviewed this report on Form 10-K of Luminex Corporation;

2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

4. The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:

a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

5. The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):

a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.


Date: February 25, 2015
 
 
By:
/s/ Harriss T. Currie
 
 
Harriss T. Currie
 
 
Chief Financial Officer, Senior Vice President of Finance





  Exhibit 32.1

CERTIFICATION PURSUANT TO
18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002

In connection with the Annual Report of Luminex Corporation (the “Company”) on Form 10-K for the period ended December 31, 2014, as filed with the Securities and Exchange Commission on the date hereof (the “Report”), I, Nachum Shamir, President and Chief Executive Officer of the Company, certify, pursuant to 18 U.S.C. §1350, as adopted pursuant to §906 of the Sarbanes-Oxley Act of 2002, that:

(1) The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and

(2) The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.



/s/ NACHUM SHAMIR                                                                            
Nachum Shamir
President and Chief Executive Officer
February 25, 2015

A SIGNED ORIGINAL OF THIS WRITTEN STATEMENT REQUIRED BY SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002 HAS BEEN PROVIDED TO LUMINEX CORPORATION AND WILL BE RETAINED BY LUMINEX CORPORATION AND FURNISHED TO THE SECURITIES AND EXCHANGE COMMISSION OR ITS STAFF UPON REQUEST.





Exhibit 32.2

CERTIFICATION PURSUANT TO
18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002

In connection with the Annual Report of Luminex Corporation (the “Company”) on Form 10-K for the period ended December 31, 2014, as filed with the Securities and Exchange Commission on the date hereof (the “Report”), I, Harriss T. Currie, Senior Vice President – Finance, Chief Financial Officer and Treasurer of the Company, certify, pursuant to 18 U.S.C. §1350, as adopted pursuant to §906 of the Sarbanes-Oxley Act of 2002, that:

(1) The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and

(2) The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.




/s/ HARRISS T. CURRIE                                                                            
Harriss T. Currie
Chief Financial Officer, Senior Vice President of Finance
February 25, 2015

A SIGNED ORIGINAL OF THIS WRITTEN STATEMENT REQUIRED BY SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002 HAS BEEN PROVIDED TO LUMINEX CORPORATION AND WILL BE RETAINED BY LUMINEX CORPORATION AND FURNISHED TO THE SECURITIES AND EXCHANGE COMMISSION OR ITS STAFF UPON REQUEST.