CERTIFICATION OF NON-FOREIGN STATUS AND NON-UNITED STATES REAL PROPERTY HOLDING CORPORATION STATUS
Pursuant to Treasury Regulations Section 1.1445-2(c)(3) and Section 1.897-2(h)
This Certification of Non-Foreign Status and Non-United States Real Property Holding Corporation Status (this "Certificate") is made and delivered by Luminex Systems Holdings Inc., a Delaware corporation (the "Company"), in connection with the Agreement and Plan of Merger, dated as of March 24, 2025 (as it may be amended, supplemented, or otherwise modified from time to time, the "Merger Agreement"), by and among Ardent Apex Holdings Inc., a Delaware corporation ("Parent"), Ardent Apex Merger Sub Inc., a Delaware corporation and a wholly owned subsidiary of Parent ("Merger Sub"), and the Company. Capitalized terms used but not otherwise defined in this Certificate shall have the respective meanings ascribed to such terms in the Merger Agreement.
Section 1. Recitals
WHEREAS, the Merger Agreement provides for the merger of Merger Sub with and into the Company (the "Merger"), with the Company surviving the Merger as a wholly owned subsidiary of Parent, upon the terms and subject to the conditions set forth in the Merger Agreement;
WHEREAS, the Merger Agreement requires the Company, as a condition to the obligations of Parent and Merger Sub to consummate the Closing, to deliver this Certificate at the Closing in accordance with Section 7.02(g) of the Merger Agreement;
WHEREAS, Sections 1445 and 897 of the Internal Revenue Code of 1986, as amended (the "Code"), and the Treasury Regulations promulgated thereunder (the "Treasury Regulations"), provide that a transferee of a United States real property interest is not required to withhold tax under Section 1445 of the Code if the transferor furnishes to the transferee an affidavit or certification stating, under penalties of perjury, that the transferor is not a foreign person and that the interest being transferred is not a United States real property interest within the meaning of Section 897(c)(1) of the Code;
WHEREAS, Treasury Regulations Section 1.1445-2(c)(3) permits a domestic corporation to certify that such corporation is not, and has not been at any time during the applicable statutory period, a "United States real property holding corporation" within the meaning of Section 897(c)(2) of the Code (a "USRPHC"), and that an interest in such corporation therefore does not constitute a United States real property interest by reason of Section 897(c)(1)(A)(ii) of the Code; and
WHEREAS, this Certificate is delivered by the Company pursuant to, and in satisfaction of, the requirements of Treasury Regulations Sections 1.1445-2(c)(3) and 1.897-2(h), and in fulfillment of the Company's obligations under Section 7.02(g) of the Merger Agreement.
NOW, THEREFORE, the Company hereby certifies and represents as follows:
Section 2. Certification of Non-Foreign Status
The Company hereby certifies, under penalties of perjury, as follows:
2.1 Entity Identification.
(a) The Company's legal name is Luminex Systems Holdings Inc.
(b) The Company's United States employer identification number (EIN) is 86-2547193.
(c) The Company's principal office address is:
2100 Reston Gateway Drive Suite 800 Reston, Virginia 20191
(d) The Company is a corporation duly organized, validly existing, and in good standing under the laws of the State of Delaware.
(e) The Company was incorporated in the State of Delaware on June 14, 2021.
2.2 Non-Foreign Person Certification.
(a) The Company is not a "foreign person" as that term is defined in Section 1445(f)(3) of the Code. For purposes of this certification, a "foreign person" means a nonresident alien individual, a foreign corporation, a foreign partnership, a foreign trust, or a foreign estate, as each such term is defined in the applicable provisions of the Code and the Treasury Regulations.
(b) The Company is not a "foreign corporation" within the meaning of Section 7701(a)(5) of the Code, a "foreign partnership" within the meaning of Section 7701(a)(5) of the Code, a "foreign trust" within the meaning of Section 7701(a)(31)(B) of the Code, or a "foreign estate" within the meaning of Section 7701(a)(31)(A) of the Code. The Company has at all times since its date of incorporation been treated as a domestic corporation for United States federal income tax purposes, and the Company has not filed any election to be treated as other than a domestic corporation under any provision of the Code or the Treasury Regulations.
(c) The Company is a "United States person" within the meaning of Section 7701(a)(30) of the Code. Specifically, the Company is a corporation created or organized in the United States or under the law of the United States or of the State of Delaware, and accordingly satisfies the definition of a United States person set forth in Section 7701(a)(30)(C) of the Code.
Section 3. Certification Regarding United States Real Property Holding Corporation Status
3.1 Non-USRPHC Certification.
The Company hereby certifies that it is not, and has not been at any time during the five-year period ending on the date of the Merger (or, if shorter, the period during which the Company has been in existence, commencing on the Company's date of incorporation on June 14, 2021 through and including the date hereof), a "United States real property holding corporation" within the meaning of Section 897(c)(2) of the Code. Under Section 897(c)(2) of the Code, a corporation is classified as a United States real property holding corporation if the fair market value of its "United States real property interests" (as defined in Section 897(c)(1) of the Code) equals or exceeds fifty percent (50%) of the aggregate of the fair market values of:
(i) its United States real property interests;
(ii) its interests in real property located outside the United States; and
(iii) any other of its assets which are used or held for use in a trade or business.
At no time during the relevant period has the fair market value of the Company's United States real property interests equaled or exceeded fifty percent (50%) of the sum of the fair market values described in clauses (i), (ii), and (iii) above. Accordingly, the Company has not been a USRPHC at any time during the applicable look-back period described above.
3.2 Nature of Company Assets.
(a) The Company's assets consist principally of the equity interests in its operating subsidiaries, including Luminex Systems Inc., a Delaware corporation, and Luminex Systems AG, a corporation organized under the laws of Switzerland, and their respective direct and indirect subsidiaries, together with intellectual property rights, contract rights, goodwill, cash and cash equivalents, and other intangible assets related to the Company's enterprise software-as-a-service (SaaS) platform and related technology solutions. The overwhelming majority of the Company's assets, measured by fair market value, consist of interests in its subsidiaries, technology-related intellectual property, customer relationships, and working capital.
(b) The Company does not own, directly or indirectly (including through any subsidiary, partnership, joint venture, or other arrangement), any interest in real property situated in the United States (other than leaseholds relating to the Company's corporate offices and facilities that do not constitute "United States real property interests" within the meaning of Section 897(c)(1) of the Code) that would cause the Company to be classified as a United States real property holding corporation under Section 897(c)(2) of the Code. The leasehold interests maintained by the Company and its subsidiaries are ordinary commercial office leases of the type that are not treated as United States real property interests under the applicable provisions of the Code and Treasury Regulations.
(c) No interest being transferred in connection with the Merger, including shares of the Company's common stock, par value $0.001 per share (the "Company Common Stock"), constitutes a "United States real property interest" within the meaning of Section 897(c)(1) of the Code. Because the Company is not and has not been a USRPHC during the applicable period, the shares of Company Common Stock are not United States real property interests by reason of Section 897(c)(1)(A)(ii) of the Code.
Section 4. Purpose of Certificate
This Certificate is provided by the Company to Parent and Merger Sub for the purpose of establishing, in accordance with the applicable provisions of the Code and the Treasury Regulations, that:
(a) No withholding of tax is required under Section 1445 of the Code in connection with the Merger, and neither Parent, Merger Sub, nor any paying agent or exchange agent acting on their behalf is required to deduct and withhold any amount from the merger consideration payable to the holders of Company Common Stock pursuant to Section 1445(a) of the Code;
(b) The Company is not a foreign person, and accordingly the withholding obligations imposed by Section 1445(a) of the Code on a transferee of a United States real property interest acquired from a foreign person do not apply with respect to the transactions contemplated by the Merger Agreement; and
(c) The shares of Company Common Stock do not constitute United States real property interests within the meaning of Section 897(c)(1) of the Code, and accordingly Section 897 of the Code does not apply to characterize gain, if any, recognized by holders of Company Common Stock in connection with the Merger as gain that is effectively connected with the conduct of a trade or business within the United States.
Section 5. Obligations Regarding Notice to the Internal Revenue Service
The Company acknowledges that this Certificate may be disclosed to the Internal Revenue Service (the "IRS") by Parent, Merger Sub, or any of their respective affiliates, agents, or representatives, and that the IRS may review this Certificate in connection with any audit, examination, or other inquiry relating to the Merger or the tax consequences thereof. The Company understands that any false statement contained herein could be punished by fine, imprisonment, or both, under the applicable penalty provisions of the Code, including Sections 6662, 6663, 7206, and 7207 thereof.
The Company further acknowledges the requirements of Treasury Regulations Section 1.897-2(h)(2), which provide that the Company shall retain a copy of this Certificate and make it available for inspection by the IRS for such period as may be required under the applicable statutes of limitations with respect to any tax return for any taxable year during which a disposition of a United States real property interest could have been reportable by the Company, Parent, Merger Sub, or any holder of Company Common Stock. The Company shall comply with any record-retention obligations applicable to this Certificate under the Code, the Treasury Regulations, and any other applicable law.
Section 6. Acknowledgments and Reliance
The Company hereby acknowledges and agrees as follows:
(a) Reliance. Parent, Merger Sub, Atlas Shareholder Services Inc. (in its capacity as paying agent and exchange agent under the Merger Agreement) (the "Paying Agent"), and each of their respective affiliates, agents, advisors, successors, and assigns are entitled to rely upon this Certificate for purposes of determining their obligations, if any, under Sections 897 and 1445 of the Code in connection with the Merger and the payment of merger consideration to the holders of Company Common Stock, and the Company shall indemnify and hold harmless each such person in accordance with the terms of the Merger Agreement to the extent any such reliance gives rise to any liability as a result of any inaccuracy in this Certificate.
(b) No Relief from Separate Tax Obligations. This Certificate does not relieve the Company, any holder of Company Common Stock, or any other person of any obligation to file tax returns, pay taxes, or comply with any other requirement arising under the Code, the Treasury Regulations, or any other applicable federal, state, local, or foreign tax law in connection with the Merger. Without limiting the generality of the foregoing, holders of Company Common Stock who are nonresident alien individuals or foreign corporations may be subject to separate withholding requirements under Sections 1441, 1442, or 1446 of the Code or other applicable provisions, and the obligations of the Paying Agent or any other withholding agent with respect to such holders are not affected by this Certificate.
(c) Limited Purpose. This Certificate is delivered solely for the purposes described herein — namely, to establish the Company's non-foreign status and non-USRPHC status under Sections 897 and 1445 of the Code — and shall not be used or relied upon by any person for any other purpose. Nothing in this Certificate shall be construed to create any rights or obligations on the part of any person other than as expressly provided herein and in the Merger Agreement.
Section 7. Authority
The undersigned officer of the Company is duly authorized to execute and deliver this Certificate on behalf of the Company, and the execution and delivery of this Certificate have been duly authorized by all necessary corporate action on the part of the Company. The undersigned has examined this Certificate and, to the best of the undersigned's knowledge and belief, after due inquiry and investigation, this Certificate is true, correct, and complete in all material respects as of the date hereof. The undersigned understands that this Certificate is made under penalties of perjury as provided by the Code and the Treasury Regulations.
Section 8. Governing Law; Effectiveness
This Certificate shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware.
This Certificate is effective as of the Closing Date (as defined in the Merger Agreement). In the event that the Merger Agreement is terminated in accordance with its terms prior to the Closing, this Certificate shall automatically be void and of no further force or effect.
[Signature Page Follows]
IN WITNESS WHEREOF, the undersigned has executed this Certificate as of the date set forth below, under penalties of perjury.
LUMINEX SYSTEMS HOLDINGS INC.
By: ________
Name: Jonathan M. Kessler
Title: Chief Financial Officer
Date: ________
EIN: 86-2547193
Address:
2100 Reston Gateway Drive Suite 800 Reston, Virginia 20191
[NOTARIZATION BLOCK — TO BE INCLUDED IF REQUIRED BY PARENT OR THE PAYING AGENT]
STATE OF ______ )
) ss.
COUNTY OF ______ )
On this _ day of ___, 2025, before me, the undersigned, a Notary Public in and for said State, personally appeared _______, known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her authorized capacity, and that by his/her signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
________________________________________
Notary Public
My Commission Expires: ____
[NOTARY SEAL]
[To be included if required by Parent or the Paying Agent]
DRAFTING NOTES / INSTRUCTIONS (FOR INTERNAL USE ONLY — TO BE REMOVED PRIOR TO EXECUTION)
1. Preparation. This form certificate has been prepared by Calderwood & Harkness LLP (Matter No. 1001-00004) for use in connection with the acquisition of Luminex Systems Holdings Inc. by Ardent Apex Holdings Inc. pursuant to the Merger Agreement dated March 24, 2025. This form should be reviewed and finalized by the Company's counsel and the Company's authorized officers prior to execution.
2. Execution. This Certificate should be executed by a duly authorized officer of the Company — preferably the Chief Financial Officer or the General Counsel — at or immediately prior to the Closing. The executing officer should have sufficient knowledge of the Company's assets and operations to certify as to the Company's non-USRPHC status under penalties of perjury. If the CFO (Jonathan M. Kessler) is unavailable, the General Counsel (Samantha R. Fielding) or the Chief Executive Officer (David L. Thornton) may execute on behalf of the Company.
3. Dating. This Certificate must be dated as of the Closing Date. The date line in the signature block should be completed at the time of execution with the actual Closing Date. Do not pre-date or post-date this Certificate.
4. Coordination with IRS Form W-9. The delivery of this Certificate should be coordinated with the IRS Form W-9 request letter to be sent to the Company and the holders of Company Common Stock. Confirm that the Company has provided a completed and executed IRS Form W-9 to the Paying Agent (Atlas Shareholder Services Inc.) contemporaneously with the delivery of this Certificate.
5. Coordination with FIRPTA/NRA Withholding Analysis. This Certificate should be reviewed in conjunction with the FIRPTA/NRA Withholding Analysis Memorandum prepared by Sylvia Hartwell (Calderwood & Harkness LLP, Tax Group) dated March 19, 2025, which sets forth the detailed legal analysis supporting the Company's non-USRPHC determination.
6. Scope — Company-Level Analysis Only. This Certificate addresses only the Company-level FIRPTA analysis — i.e., whether the Company is a foreign person and whether the Company is or has been a USRPHC. Individual stockholder-level withholding considerations, including withholding obligations with respect to non-U.S. holders of Company Common Stock (such as management participants, option holders, or investors who are nonresident alien individuals or foreign entities), are addressed separately through: (a) the collection of IRS Forms W-8BEN, W-8BEN-E, and W-8IMY from applicable holders; and (b) the FIRPTA/NRA withholding procedures set forth in the Paying Agent Agreement and the related withholding procedures memorandum. See the Closing Checklist (Master) for the complete list of required withholding documentation.
7. Confirmation of Asset Composition. Prior to execution, confirm with the Company's management and the Company's counsel that the Company's assets have not materially changed since the date of the Merger Agreement (or since the date of the most recent internal USRPHC analysis) in a manner that would affect the Company's non-USRPHC status. In particular, confirm that the Company has not acquired, directly or indirectly, any United States real property interests that would cause the fair market value of its United States real property interests to equal or exceed 50% of the aggregate fair market value of its total assets (determined in accordance with Section 897(c)(2) of the Code).
8. Cross-References. This Certificate should be cross-referenced against the following documents in the closing set:
• Merger Agreement, Section 7.02(g) (Closing Deliverables — FIRPTA Certificate)
• Closing Checklist (Master), Item Nos. 42–44 (FIRPTA Certificate, Form W-9, Withholding Documentation)
• Paying Agent Agreement, Section 2.04 (Tax Withholding Procedures)
• FIRPTA/NRA Withholding Analysis Memorandum (S. Hartwell, March 19, 2025)
• IRS Form W-9 Request Letter (to Company)
9. Notarization. The notarization block is included on an optional basis. Confirm with Parent's counsel whether notarization is required. Notarization is not required under Treasury Regulations Section 1.1445-2(c)(3), but may be requested by the Paying Agent or Parent as a matter of practice.
10. Retention. Following execution, copies of this Certificate should be retained by Calderwood & Harkness LLP, the Company, Parent, Parent's counsel, and the Paying Agent. The Company should retain a copy for a minimum of seven (7) years from the Closing Date, or such longer period as may be required under the applicable statute of limitations.
CONFIDENTIAL — ATTORNEY WORK PRODUCT — ATTORNEY-CLIENT PRIVILEGE