ATTORNEY-CLIENT PRIVILEGED AND CONFIDENTIAL
CALDERWOOD & HARKNESS LLP 7 Times Square New York, NY 10036 Tel: (212) 558-4000
Fax: (212) 558-3588
www.calderwoodharkness.com
James Prentice Partner, Mergers & Acquisitions Direct: (212) 558-4127 jprentice@calderwoodharkness.com
April 1, 2025
VIA EMAIL AND OVERNIGHT COURIER
Mr. Philip Navarro Managing Director Ashbury Risk Advisors LLC 175 Water Street, 20th Floor New York, NY 10038
Re: Procurement of Directors & Officers Liability Insurance Tail Policy — Luminex Systems Holdings Inc. (the "Company") — Calderwood & Harkness LLP Matter No. 1001-00004
Dear Mr. Navarro:
I. PURPOSE OF THIS INSTRUCTION LETTER
We write on behalf of our client, Ardent Capital Partners III LP ("Ardent Capital"), a Delaware limited partnership with principal offices at 399 Park Avenue, 42nd Floor, New York, NY 10022, in connection with its pending acquisition of Luminex Systems Holdings Inc. ("Luminex Holdings" or the "Company"), a Delaware corporation with principal offices at 2100 Reston Gateway Drive, Suite 800, Reston, VA 20191. As you are aware, Calderwood & Harkness LLP serves as transaction counsel to Ardent Capital in this matter.
The transaction is structured as a reverse triangular merger under the General Corporation Law of the State of Delaware, pursuant to which Ardent Apex Merger Sub Inc. ("Merger Sub"), a Delaware corporation and a direct wholly owned subsidiary of Ardent Apex Holdings Inc. ("Parent"), will merge with and into Luminex Holdings, with Luminex Holdings surviving the merger as a wholly owned subsidiary of Parent (the "Merger"). The aggregate equity value of the transaction is Two Billion Eight Hundred Million Dollars ($2,800,000,000), representing merger consideration of $20.00 per share across 140,000,000 fully diluted shares of Company common stock.
The Agreement and Plan of Merger among Parent, Merger Sub, and the Company was executed on March 24, 2025 (the "Merger Agreement"). Subject to the satisfaction or waiver of customary closing conditions, including the receipt of required regulatory approvals, the parties currently anticipate closing the Merger during the third quarter of 2025 (estimated July–August 2025).
The purpose of this instruction letter is to formally instruct Ashbury Risk Advisors LLC ("Ashbury" or the "Broker") to procure a "tail" or "run-off" directors and officers liability insurance policy (the "D&O Tail Policy") for the benefit of current and former directors and officers of Luminex Holdings and its subsidiaries, as required by the terms of the Merger Agreement. Specifically, Section 6.04(b) of the Merger Agreement obligates the Buyer to cause the surviving corporation to maintain directors' and officers' liability insurance tail coverage for a period of not less than six (6) years following the Effective Time (as defined in the Merger Agreement) of the Merger. This letter sets forth the detailed instructions, coverage parameters, coordination requirements, and timeline for the placement of the D&O Tail Policy.
We ask that you treat this letter and all communications related to the placement of the D&O Tail Policy as attorney-client privileged and confidential. Please do not disclose the contents of this letter or the terms of the transaction to any third party (including carriers, other than as necessary for the placement of the policy) without the prior written consent of the undersigned.
II. TRANSACTION BACKGROUND
To provide you with sufficient context for the placement of the D&O Tail Policy, we summarize below the key parties to the transaction and the relevant transaction structure.
A. The Parties
Buyer. Ardent Capital Partners III LP is a Delaware limited partnership and a private equity fund managed by Ardent Capital Management LLC. Fund III has aggregate capital commitments of approximately $12.5 billion (vintage 2023) and is co-managed by Theodore "Ted" Hargrove and Victoria Langford, who serve as Managing Partners of the fund's general partner. Ardent Capital has a track record of investing in enterprise software, cybersecurity, and technology-enabled services businesses.
Parent. Ardent Apex Holdings Inc. is a Delaware corporation incorporated on March 5, 2025, solely for the purpose of effectuating the Merger. Parent serves as the direct parent of Merger Sub and will, following the closing, be the direct parent of the surviving corporation. Parent's Employer Identification Number (EIN) is 93-2178435.
Merger Sub. Ardent Apex Merger Sub Inc. is a Delaware corporation incorporated on March 7, 2025, solely for the purpose of merging with and into Luminex Holdings in the Merger. Merger Sub will cease to exist at the Effective Time. Merger Sub's EIN is 93-2178502.
Target / Company. Luminex Systems Holdings Inc. is a Delaware corporation incorporated on June 14, 2021, with its EIN being 86-2547193. Luminex Holdings serves as the intermediate U.S. holding company for Luminex Systems AG, a Swiss corporation (Aktiengesellschaft) registered under CHE-284.391.057 in the Swiss Commercial Register, and its worldwide subsidiaries. The Luminex group is a leading provider of enterprise cloud infrastructure management and cybersecurity solutions, with operations across North America, Europe, and the Asia-Pacific region.
B. Pre-Closing Ownership
Prior to the Merger, Luminex Holdings is owned as follows:
• Ridgeline Growth Equity Fund II LP — approximately 52% of outstanding shares;
• Meridian Venture Partners IV LP — approximately 20% of outstanding shares; and
• Management and employees of the Company — approximately 28% of outstanding shares (including shares subject to vesting and options).
C. Post-Closing Structure
Following the Effective Time, Luminex Holdings will survive the Merger as a wholly owned subsidiary of Ardent Apex Holdings Inc. All outstanding shares of Company common stock (other than dissenting shares, treasury shares, and shares held by Parent or Merger Sub) will be canceled and converted into the right to receive the per-share merger consideration of $20.00 in cash, without interest. The Merger constitutes a "change of control" of the Company, triggering the need for the D&O Tail Policy to protect current and former directors and officers for pre-closing acts and omissions.
D. Seller's Counsel
The Company and selling stockholders are represented by Caldwell, Raines & Sheppard LLP, with Patricia Okonkwo serving as lead partner. Coordination with seller's counsel is described more fully in Section X below.
III. D&O TAIL POLICY REQUIREMENTS
Set forth below are the detailed requirements for the D&O Tail Policy. Ashbury is instructed to procure a policy that satisfies each of the following parameters, terms, and conditions.
A. Coverage Parameters
Policy Type. The D&O Tail Policy must be a non-cancelable "tail" or "run-off" directors and officers liability insurance policy. The policy must, once bound and the premium fully paid, be incapable of cancellation by the insurer, the surviving corporation, its successors, or its assigns during the entire tail period, regardless of any subsequent corporate restructuring, change in ownership, or other event.
Carrier. Ashbury is instructed to place the D&O Tail Policy with Palisade Mutual Insurance Co. ("Palisade"), a mutual insurance company domiciled in the State of New York, with principal offices located at 1 Liberty Street, 14th Floor, New York, NY 10006. As discussed between our offices, Palisade has been the Company's primary D&O carrier for the existing policy period, and continuity of carrier is preferred to minimize issues related to coverage gaps, policy interpretation, and claims handling.
Policy Number. We understand that Palisade has provisionally assigned policy number PAL-DO-2025-11473 to the D&O Tail Policy. Please confirm this assignment in connection with the formal binder.
Aggregate Policy Limit. The D&O Tail Policy must provide an aggregate limit of liability of not less than Fifty Million Dollars ($50,000,000) for all claims made during the tail period. This limit is consistent with the coverage level maintained by the Company under its existing D&O program and satisfies the requirements of the Merger Agreement.
Tail Period. The tail period (i.e., the extended reporting period) must be six (6) years, commencing from the Effective Time of the Merger. The Effective Time will be the date and time that the Certificate of Merger is filed with the Secretary of State of the State of Delaware (or such later time as may be agreed by the parties and specified in the Certificate of Merger). For purposes of the policy, the tail period will run from the Effective Time through the sixth anniversary thereof.
Effective Date. The D&O Tail Policy must become effective simultaneously with the closing of the Merger. The policy must be in force and bound upon the Effective Time; accordingly, the binder and all premium payments must be arranged so that coverage incepts at the precise moment the Merger closes.
Retroactive Date. The D&O Tail Policy must provide full prior acts coverage, meaning the policy must cover all wrongful acts committed or allegedly committed at any time prior to the Effective Time. There must be no retroactive date limitation. This is essential to ensure that current and former directors and officers are protected with respect to claims arising from any act, error, omission, misstatement, misleading statement, breach of duty, or other wrongful act that occurred at any time during their tenure, regardless of when such act occurred.
B. Insureds / Covered Persons
The D&O Tail Policy must cover the following persons as insureds (collectively, the "Covered Persons"):
1. All current and former directors and officers of Luminex Systems Holdings Inc.;
2. All current and former directors and officers of each direct and indirect subsidiary of Luminex Holdings, including but not limited to the following entities:
(a) Luminex Systems AG, a Swiss corporation (Aktiengesellschaft), with registered offices at Bahnhofstrasse 71, 8001 Zürich, Switzerland;
(b) Luminex Systems Inc. ("Luminex US"), a Delaware corporation, with offices at 2100 Reston Gateway Drive, Suite 800, Reston, VA 20191;
(c) Luminex Systems UK Ltd., a private limited company organized under the laws of England and Wales, with registered offices at 14 Broadwick Street, London W1F 8HN, United Kingdom (Company No. 12847362);
(d) Luminex Systems GmbH, a German limited liability company (Gesellschaft mit beschränkter Haftung), with registered offices at Leopoldstrasse 120, 80802 Munich, Germany (Commercial Register No. HRB 247891, Munich); and
(e) Luminex Systems Pte. Ltd., a private limited company organized under the laws of Singapore, with registered offices at 8 Marina Boulevard, #36-01, Singapore 018981 (Unique Entity Number: 201924781K).
3. Without limiting the generality of the foregoing, the D&O Tail Policy must specifically include the following named individuals in their respective capacities as directors and/or officers of the Company and/or its subsidiaries:
(a) Dr. Stefan Kessler, Chief Executive Officer;
(b) Annelise Gruber, Chief Financial Officer;
(c) Dr. Markus Vogt, Chief Technology Officer;
(d) Roland Merz, Chairman of the Board of Luminex Systems AG; and
(e) All other current members of the boards of directors and executive officers of Luminex Holdings and each subsidiary who are serving in such capacities at or prior to the Effective Time.
A complete list of all current and former directors and officers who are to be covered under the D&O Tail Policy will be compiled in coordination with the Company and seller's counsel, as described in Section VIII below. Ashbury should ensure that the policy definition of "Insured Person" is sufficiently broad to encompass all such individuals without the need for individual endorsement.
C. Coverage Terms and Conditions
Benchmark Standard. The D&O Tail Policy must provide coverage on terms and conditions that are no less favorable in the aggregate than the terms and conditions of the Company's existing directors and officers liability insurance policy in effect immediately prior to the closing of the Merger (the "Existing Policy"). To establish the appropriate benchmark, we instruct Ashbury to obtain from the Company — either directly from the Company's Chief Financial Officer, Annelise Gruber, or through the Company's outside counsel, Caldwell, Raines & Sheppard LLP (attention: Daniel Feinberg) — the following documents with respect to the Existing Policy:
(i) Complete declarations pages;
(ii) The full policy form (including all coverage parts);
(iii) All endorsements, riders, and amendments;
(iv) Any side letters or binding agreements with the carrier regarding coverage interpretation; and
(v) Premium and deductible/retention schedules.
Ashbury should promptly forward all such documents to Calderwood & Harkness for our review, together with Ashbury's analysis of any material differences between the proposed D&O Tail Policy terms and the Existing Policy.
Insuring Agreements. The D&O Tail Policy must include, at minimum, the following coverage grants:
(a) Side A Coverage — Direct coverage for individual directors and officers for losses arising from claims made against them for wrongful acts in their capacities as directors or officers, to the extent that indemnification by the Company or the surviving corporation is unavailable or not permitted by law. Side A coverage is a critical component of the tail policy, as post-closing, the surviving corporation's financial condition, willingness to indemnify, and corporate governance may change.
(b) Side B Coverage — Reimbursement coverage for the Company (and, post-closing, the surviving corporation) for amounts that the Company is permitted or required to pay as indemnification to directors and officers for losses arising from claims for wrongful acts.
(c) Side C / Entity Securities Coverage — If the Existing Policy includes Side C or entity coverage for securities claims against the Company, the D&O Tail Policy should likewise include such coverage. If the Existing Policy does not include Side C coverage, or if Side C coverage is not available on reasonable terms for the tail policy, please advise us accordingly.
Territory. The D&O Tail Policy must provide worldwide coverage, consistent with the global operations of the Luminex group.
Defense Costs. Defense costs (including attorneys' fees, expert witness fees, and other costs of defending claims) should be treated consistently with the Existing Policy. If the Existing Policy provides that defense costs erode the aggregate policy limit (i.e., defense costs are included within the limit), the D&O Tail Policy may follow the same structure. However, if the Existing Policy provides for defense costs outside the aggregate limit, the D&O Tail Policy should likewise provide defense costs outside the limit. Please confirm the treatment of defense costs under the Existing Policy and ensure the D&O Tail Policy matches.
Exclusions. The D&O Tail Policy must not contain any exclusion for pre-closing wrongful acts, regulatory proceedings, governmental investigations, or enforcement actions, unless such exclusion is consistent with and no broader than the exclusions contained in the Existing Policy. In particular, the following exclusions (which are commonly found in D&O policies) should be no broader than those in the Existing Policy:
(i) The fraud/dishonesty exclusion (which should apply only upon a final adjudication establishing actual fraud or deliberate criminal conduct);
(ii) The insured-versus-insured exclusion (which should include customary carve-outs for derivative actions, whistleblower claims, and employment practices claims);
(iii) The prior and pending litigation exclusion (which should not apply to wrongful acts that are merely related to, but not the subject of, prior or pending litigation); and
(iv) The professional services/errors and omissions exclusion (if applicable).
Any proposed exclusion or endorsement that differs materially from the Existing Policy must be flagged by Ashbury and submitted to Calderwood & Harkness for review and approval before the policy is bound.
D. Claim Reporting
Extended Reporting Period. The six-year tail period constitutes the extended reporting period under the D&O Tail Policy. All claims first made during the tail period that arise out of or relate to wrongful acts committed or allegedly committed prior to the Effective Time must be covered under the D&O Tail Policy, subject only to the applicable terms, conditions, and exclusions of the policy.
Claims Reporting Procedures. Claims under the D&O Tail Policy are to be reported to Palisade Mutual Insurance Co. in accordance with the claims reporting procedures set forth in the policy. Ashbury should ensure that the policy includes clear and reasonable notice provisions, and that the claims reporting address and contact information for Palisade are prominently set forth in the declarations pages or an endorsement.
Post-Closing Claims Coordination. Following the closing of the Merger, claims reporting and administration under the D&O Tail Policy will be coordinated through the surviving corporation's general counsel or other designated claims contact. Until a permanent general counsel is appointed for the surviving corporation, claims correspondence should be directed to Calderwood & Harkness LLP (attention: James Prentice and Ryan Kowalski) with a copy to Ardent Capital (attention: David Ng, CFO). We will provide updated claims coordination instructions as the post-closing integration progresses.
IV. CARRIER SELECTION AND BINDING INSTRUCTIONS
A. Primary Carrier
Ashbury Risk Advisors LLC is hereby instructed to place the D&O Tail Policy with Palisade Mutual Insurance Co. as the primary carrier. As noted above, Palisade is the Company's current D&O carrier, and continuity of carrier will minimize the risk of coverage disputes and facilitate seamless claims handling during the tail period.
B. Contingency Planning
In the event that Palisade is unable or unwilling to provide the full $50,000,000 aggregate limit on terms and conditions acceptable to Calderwood & Harkness and Ardent Capital, Ashbury should immediately notify the undersigned in writing and propose one or more of the following alternative structures, subject in all cases to the prior written approval of Calderwood & Harkness (on behalf of Ardent Capital):
(i) Placement with an alternative primary carrier of comparable financial strength and claims-paying reputation;
(ii) A layered program consisting of a primary policy placed with Palisade (at such limit as Palisade is willing to provide) and one or more excess policies placed with other carriers, such that the aggregate limit of the program equals or exceeds $50,000,000; or
(iii) Such other structure as Ashbury may recommend, provided that the aggregate coverage is no less favorable than the Existing Policy.
C. Required Deliverables from Carrier
Ashbury is requested to obtain and forward to Calderwood & Harkness the following items in connection with the placement:
(i) A formal quote or indication from Palisade, setting forth the proposed premium, aggregate limit, retention or deductible (if any), tail period, and a summary of material terms, conditions, and exclusions;
(ii) A complete draft of the D&O Tail Policy form (including all insuring agreements, definitions, conditions, and exclusions) for Calderwood & Harkness's review prior to binding;
(iii) Confirmation of Palisade's current financial strength rating from A.M. Best Company (or an equivalent rating from Standard & Poor's or Moody's), together with any recent rating actions or outlooks; and
(iv) A formal binder of insurance, to be issued by Palisade upon authorization to bind, confirming that coverage will incept at the Effective Time.
D. Review and Approval Process
Calderwood & Harkness will review the draft D&O Tail Policy form and all proposed endorsements, exclusions, and conditions. We will consult with our client, Ardent Capital, and coordinate with seller's counsel, Caldwell, Raines & Sheppard LLP, to confirm that the proposed policy satisfies the requirements of Section 6.04(b) of the Merger Agreement. Any non-standard exclusions, limitations, or endorsements that differ materially from the Existing Policy will require our express written approval before Ashbury may accept or agree to such terms on behalf of the insured parties.
E. Binding Authority
Ashbury may bind coverage under the D&O Tail Policy only upon receipt of the following:
(a) Written authorization from Calderwood & Harkness LLP (on behalf of Ardent Capital); and
(b) Written confirmation from Caldwell, Raines & Sheppard LLP (on behalf of the Company and the selling stockholders) that the policy terms satisfy the requirements of the Merger Agreement.
Under no circumstances should Ashbury bind or agree to bind coverage without having received both of the foregoing written authorizations. Any purported binding without such dual authorization shall be without effect and shall not bind Ardent Capital, the Company, or their respective affiliates.
V. PREMIUM AND PAYMENT
A. Premium Payment Timing
The premium for the D&O Tail Policy is to be paid at or prior to the closing of the Merger as a transaction expense. Because the D&O Tail Policy must be in force at the Effective Time, the premium must be fully paid no later than the closing date.
B. Funding Source
The premium for the D&O Tail Policy will be funded from the Buyer's transaction expense budget. The estimated total buyer-side transaction expenses for the Merger are approximately $62,000,000 (inclusive of legal fees, advisory fees, financing fees, insurance premiums, and other closing costs). The D&O tail premium will be included as a line item in the Funds Flow Memorandum prepared by Calderwood & Harkness and distributed to all parties prior to closing.
C. Premium Confirmation
Ashbury is requested to confirm the estimated premium for the D&O Tail Policy (based on a $50,000,000 aggregate limit and a six-year tail period) as promptly as practicable following receipt of the Company's existing D&O policy information. Ashbury should provide a formal premium invoice or premium allocation statement suitable for inclusion in the closing funds flow.
D. Non-Cancelable, Fully Prepaid Premium
The premium for the D&O Tail Policy must be a one-time, fully prepaid, non-cancelable payment. No additional premiums, assessments, or surcharges shall be required during the tail period, regardless of claims activity, changes in the surviving corporation's financial condition, or any other event. The non-cancelable nature of the premium and the policy is a fundamental requirement of the Merger Agreement and must be clearly reflected in the policy terms.
E. Wire Instructions
Ashbury is to provide wire transfer instructions (including bank name, ABA routing number, account number, and beneficiary information) for the payment of the D&O tail premium. These instructions will be incorporated into the Funds Flow Memorandum, and the premium will be wired on the closing date as part of the closing funding sequence.
VI. COORDINATION WITH MERGER AGREEMENT PROVISIONS
A. Governing Provisions
The D&O Tail Policy is being procured pursuant to and in compliance with the terms of the Agreement and Plan of Merger dated as of March 24, 2025, among Ardent Apex Holdings Inc., Ardent Apex Merger Sub Inc., and Luminex Systems Holdings Inc. In particular, Section 6.04(b) of the Merger Agreement provides, in relevant part, that the Buyer shall cause the surviving corporation, for a period of six (6) years after the Effective Time, to maintain in effect the Company's existing directors' and officers' liability insurance policies (or to purchase a "tail" or "run-off" policy providing coverage no less favorable than the existing policies) covering acts or omissions occurring at or prior to the Effective Time with respect to those persons who are currently (or were at any time prior to the Effective Time) covered by the Company's directors' and officers' liability insurance policies.
This obligation is a covenant of the Buyer that survives the closing of the Merger and runs for the full six-year tail period. The surviving corporation's maintenance of the D&O Tail Policy is not subject to early termination, and the surviving corporation may not cancel, reduce, or modify the D&O Tail Policy in any manner that is adverse to the interests of the Covered Persons without the prior written consent of the Covered Persons (or their duly appointed representative).
B. Cost Cap
Section 6.04(b) of the Merger Agreement provides that the Buyer shall not be required to pay an annual premium for the D&O Tail Policy in excess of three hundred percent (300%) of the last annual premium paid by the Company for its existing D&O insurance coverage. Ashbury should confirm the amount of the Company's most recent annual D&O premium (to be obtained from the Company or seller's counsel) and ensure that the quoted tail premium does not exceed 300% of such annual premium.
In the event that the quoted tail premium exceeds the cost cap, Ashbury should:
(i) Immediately notify Calderwood & Harkness and Caldwell, Raines & Sheppard LLP;
(ii) Obtain the maximum amount of coverage available from Palisade (or from a combination of carriers) for a premium equal to 300% of the last annual premium; and
(iii) Provide a written summary of the available coverage, limits, and terms for our review.
C. Non-Cancelability
As noted above, the D&O Tail Policy must be non-cancelable by the surviving corporation, its successors, or its assigns at any time during the six-year tail period. The non-cancelable nature of the policy is an express requirement of the Merger Agreement and is intended to protect the Covered Persons against the risk that the surviving corporation or its future owners might seek to terminate coverage to reduce costs. The policy must explicitly state that it cannot be canceled, rescinded, or voided during the tail period, except in the event of the carrier's insolvency or as otherwise required by applicable law.
VII. COORDINATION WITH R&W INSURANCE AND ESCROW
We wish to emphasize that the D&O Tail Policy is a distinct insurance product from, and should not be conflated with, the other risk transfer and indemnification mechanisms established in connection with the Merger. Specifically:
A. Representations and Warranties Insurance
Ashbury Risk Advisors LLC has separately brokered a buy-side representations and warranties insurance policy (the "R&W Policy") placed with Grandview Specialty Insurance Company. The details of the R&W Policy are as follows:
• Carrier: Grandview Specialty Insurance Company
• Policy Number: GSI-RWI-2025-04821
• Limit: $420,000,000
• Retention: $14,000,000 (split 50/50 between Buyer and the selling stockholders' representative)
• Brokered by: Ashbury Risk Advisors LLC
The R&W Policy covers losses arising from breaches of the representations and warranties made by the Company in the Merger Agreement and is not intended to cover personal liability of individual directors and officers. The D&O Tail Policy, by contrast, covers individual liability of directors and officers for wrongful acts. These are fundamentally different coverages, and Ashbury should maintain separate files, underwriting records, and contact points for each.
B. Indemnification Escrow
The Merger Agreement also establishes an escrow arrangement for post-closing indemnification claims, the details of which are as follows:
• Escrow Agent: Continental Fiduciary Trust Company
• Escrow Account Reference: CFT-ESC-2025-7894
• Escrow Amount: $140,000,000
• Escrow Period: Eighteen (18) months from the closing date
The indemnification escrow is separate from and in addition to the D&O Tail Policy and the R&W Policy. The escrow funds are held for the benefit of the Buyer and Parent to satisfy post-closing indemnification claims under the Merger Agreement (including claims for breaches of representations, warranties, and covenants), and do not serve as a source of funding for D&O claims.
C. Separate Administration
We request that Ashbury maintain separate files, contact points, and internal tracking for the D&O Tail Policy and the R&W Policy to avoid any confusion in administration, claims handling, or correspondence. All communications regarding the D&O Tail Policy should reference "Luminex D&O Tail — PAL-DO-2025-11473" in the subject line, while communications regarding the R&W Policy should reference "Luminex R&W — GSI-RWI-2025-04821."
VIII. INFORMATION REQUIRED FROM THE COMPANY
To support the underwriting and placement of the D&O Tail Policy, Ashbury will need to obtain certain information and documentation from the Company. Ashbury is instructed to coordinate with the Company, either directly through the Company's Chief Financial Officer, Annelise Gruber, or through seller's counsel, Caldwell, Raines & Sheppard LLP (attention: Daniel Feinberg, Associate), to obtain the following:
(a) Current D&O Policy Documentation. Complete copies of the current D&O policy declarations pages, the full policy form (including all insuring agreements, conditions, and exclusions), and all endorsements, riders, amendments, and side letters, in each case as currently in effect.
(b) Claims History / Loss Runs. A complete claims history and loss run report for the past five (5) years (i.e., from January 1, 2020 through the present), including details of all claims made, claims paid, claims reserved, and claims denied under the Company's D&O insurance program.
(c) List of Directors and Officers. A complete list of all current and former directors and officers of Luminex Systems Holdings Inc. and each of its direct and indirect subsidiaries (including Luminex Systems AG, Luminex Systems Inc., Luminex Systems UK Ltd., Luminex Systems GmbH, and Luminex Systems Pte. Ltd.), together with their respective titles, dates of service, and current contact information.
(d) Pending or Threatened Claims. A description of any pending or threatened claims, lawsuits, arbitration proceedings, regulatory investigations, enforcement actions, or governmental inquiries involving any current or former director or officer of the Company or its subsidiaries, or of which any such director or officer is aware.
(e) Corporate Organizational Chart. A current corporate organizational chart and subsidiary list for the Luminex group, showing all direct and indirect subsidiaries of Luminex Holdings, their respective jurisdictions of incorporation, and their ownership structures.
(f) Financial Statements. The most recent audited consolidated financial statements of the Company and its subsidiaries, as audited by Hargrove Thornton LLP (audit engagement partner: Margaret Dawson), together with any subsequent unaudited interim financial statements.
(g) Indemnification Provisions. Copies of the Company's certificate of incorporation and bylaws (and equivalent organizational documents of each subsidiary), including all provisions relating to the indemnification of directors and officers, together with copies of any individual indemnification agreements entered into between the Company (or any subsidiary) and any director or officer.
Ashbury should submit its information request to the Company and seller's counsel promptly upon receipt of this instruction letter. If the Company or seller's counsel raises any objections to providing the requested information, Ashbury should immediately notify the undersigned so that we may coordinate the appropriate resolution.
IX. TIMELINE AND DELIVERABLES
Time is of the essence with respect to the placement of the D&O Tail Policy. The Merger is expected to close during the third quarter of 2025, and the D&O Tail Policy is a closing deliverable under the Merger Agreement and the parties' closing checklist. Accordingly, we set forth the following timeline for the key milestones in the placement process:
If any milestone cannot be met due to carrier delays, underwriting issues, or other circumstances, Ashbury should notify Calderwood & Harkness immediately so that we may assess the impact on the closing timeline and take appropriate remedial action. We remind Ashbury that the D&O Tail Policy is identified as a closing deliverable on the parties' closing checklist, and failure to have the policy in place at closing could result in a delay of the transaction.
X. CONTACT INFORMATION AND COMMUNICATION PROTOCOL
A. Calderwood & Harkness LLP — Primary Contacts
All communications regarding the D&O Tail Policy should be directed to the following members of the Calderwood & Harkness deal team:
James Prentice — Responsible Partner (M&A) Calderwood & Harkness LLP 7 Times Square New York, NY 10036 Direct: (212) 558-4127
Email: jprentice@calderwoodharkness.com
Ryan Kowalski — Lead Associate (M&A) Calderwood & Harkness LLP 7 Times Square New York, NY 10036 Direct: (212) 558-4283
Email: rkowalski@calderwoodharkness.com
Megan Chu — Working Associate (M&A) Calderwood & Harkness LLP 7 Times Square New York, NY 10036 Direct: (212) 558-4391
Email: mchu@calderwoodharkness.com
B. Ardent Capital Partners III LP — Client Contact
David Ng — Chief Financial Officer Ardent Capital Partners III LP 399 Park Avenue, 42nd Floor New York, NY 10022 Direct: (212) 303-7514
Email: dng@ardentcapital.com
C. Seller's Counsel — Coordination Contact
Patricia Okonkwo — Partner Caldwell, Raines & Sheppard LLP 51 West 52nd Street New York, NY 10019 Direct: (212) 492-6700
Email: pokonkwo@crslaw.com
Daniel Feinberg — Associate Caldwell, Raines & Sheppard LLP 51 West 52nd Street New York, NY 10019 Direct: (212) 492-6842
Email: dfeinberg@crslaw.com
D. Company Contact
Annelise Gruber — Chief Financial Officer Luminex Systems Holdings Inc. 2100 Reston Gateway Drive, Suite 800 Reston, VA 20191 Direct: (571) 405-2200
Email: agruber@luminexsystems.com
E. Communication Protocol
All policy drafts, binders, quotes, premium invoices, and other material correspondence regarding the D&O Tail Policy must be copied to both James Prentice and Ryan Kowalski at Calderwood & Harkness LLP at the email addresses set forth above. Ashbury should not communicate directly with Ardent Capital's principals (other than David Ng, as set forth above) regarding the D&O Tail Policy without the prior consent of the undersigned.
All communications related to this instruction letter and the placement of the D&O Tail Policy are subject to attorney-client privilege and the work product doctrine. All written communications should be marked "Attorney-Client Privileged and Confidential" or "Privileged and Confidential — Prepared at the Direction of Counsel" as appropriate.
XI. CLOSING INSTRUCTIONS
We reiterate that Ashbury should proceed promptly and diligently to obtain the quote and draft policy form from Palisade Mutual Insurance Co. in accordance with the instructions set forth in this letter. The placement of the D&O Tail Policy is a critical workstream in the closing process, and we expect Ashbury to dedicate appropriate resources to ensure that the timeline set forth in Section IX is met.
We request that Ashbury provide written acknowledgment of receipt of this instruction letter within two (2) business days, together with confirmation of Ashbury's engagement to place the D&O Tail Policy on the terms and conditions described herein. If Ashbury has any questions regarding these instructions or requires any clarifications, please do not hesitate to contact the undersigned or Ryan Kowalski at the numbers and addresses listed above.
We emphasize that the D&O Tail Policy is a closing deliverable under the Merger Agreement and is identified as Item 12 on the Buyer's Closing Deliverables section of the closing checklist. Failure to have the D&O Tail Policy bound and in place at the Effective Time could result in a delay of the closing or, in the worst case, provide a basis for the Company to assert that a closing condition has not been satisfied. We trust that Ashbury appreciates the urgency and importance of this matter.
We would welcome the opportunity to schedule a call with Ashbury, the Company (through Ms. Gruber), and seller's counsel (Patricia Okonkwo and Daniel Feinberg) to discuss any questions or to coordinate the information-gathering process. Please let us know your availability during the week of April 7, 2025, and we will circulate a calendar invitation.
We thank you for your prompt attention to this matter and look forward to working with you to ensure the timely placement of the D&O Tail Policy.
XII. SIGNATURE
Very truly yours,
CALDERWOOD & HARKNESS LLP
By: ________
James Prentice Partner, Mergers & Acquisitions
Calderwood & Harkness LLP 7 Times Square New York, NY 10036 Direct: (212) 558-4127
Email: jprentice@calderwoodharkness.com
XIII. ENCLOSURES
The following documents are enclosed with this instruction letter for your reference:
1. Enclosure A — Excerpted provisions of the Agreement and Plan of Merger dated March 24, 2025, relating to directors' and officers' liability insurance tail coverage (Section 6.04(b) and related definitions).
2. Enclosure B — Excerpt from the Closing Checklist identifying the D&O Tail Policy as a closing deliverable (Buyer's Closing Deliverables, Item 12).
3. Enclosure C — Contact list for the Calderwood & Harkness, Ardent Capital, and Caldwell, Raines & Sheppard engagement teams.