EXECUTION VERSION
AGREEMENT AND PLAN OF MERGER
among
ARDENT APEX HOLDINGS INC., a Delaware corporation ("Parent")
ARDENT APEX MERGER SUB INC., a Delaware corporation and wholly owned subsidiary of Parent ("Merger Sub")
and
LUMINEX SYSTEMS HOLDINGS INC., a Delaware corporation (the "Company")
Dated as of March 24, 2025
TABLE OF CONTENTS
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EXHIBITS
COMPANY DISCLOSURE SCHEDULES (delivered separately)
BUYER DISCLOSURE SCHEDULES (delivered separately)
AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER (this "Agreement"), dated as of March 24, 2025, is entered into by and among ARDENT APEX HOLDINGS INC., a Delaware corporation ("Parent"), ARDENT APEX MERGER SUB INC., a Delaware corporation and wholly owned subsidiary of Parent ("Merger Sub"), and LUMINEX SYSTEMS HOLDINGS INC., a Delaware corporation (the "Company"). Parent, Merger Sub, and the Company are each referred to herein individually as a "party" and collectively as the "parties."
RECITALS
WHEREAS, Parent is a corporation duly incorporated and validly existing under the laws of the State of Delaware, having been incorporated on March 5, 2025, with its registered agent being National Registered Agents of Delaware, Inc., 160 Greentree Drive, Suite 101, Dover, Delaware 19904, and its employer identification number being 93-2178435;
WHEREAS, Merger Sub is a corporation duly incorporated and validly existing under the laws of the State of Delaware, having been incorporated on March 7, 2025, and is a wholly owned subsidiary of Parent, with its registered agent being National Registered Agents of Delaware, Inc., 160 Greentree Drive, Suite 101, Dover, Delaware 19904, and its employer identification number being 93-2178502. Merger Sub was formed exclusively to effect the Merger (as defined below) and has not conducted any activities other than those incident to its formation, the execution and delivery of this Agreement, and the consummation of the transactions contemplated hereby;
WHEREAS, the Company is a corporation duly incorporated and validly existing under the laws of the State of Delaware, having been incorporated on June 14, 2021, with its principal executive office located at 2100 Reston Gateway Drive, Suite 800, Reston, Virginia 20191, and its registered agent being Capitol Corporate Services, Inc., 1675 South Ashbury Asset Advisors, Suite B, Dover, Delaware 19901, and its employer identification number being 86-2547193. The Company is the intermediate United States holding company for Luminex Systems AG, a Swiss Aktiengesellschaft (Commercial Register No. CHE-284.391.057), and its worldwide operations, established pursuant to a corporate reorganization completed in 2021;
WHEREAS, Parent is a wholly owned subsidiary of Ardent Capital Partners III LP, a Delaware limited partnership (the "Sponsor"), headquartered at 399 Park Avenue, 42nd Floor, New York, New York 10022;
WHEREAS, the respective boards of directors of Parent, Merger Sub, and the Company have each approved this Agreement and the transactions contemplated hereby, including the Merger, upon the terms and subject to the conditions set forth herein;
WHEREAS, Parent, as the sole stockholder of Merger Sub, has approved and adopted this Agreement by written consent in lieu of a meeting of stockholders in accordance with the General Corporation Law of the State of Delaware;
WHEREAS, the boards of directors of Parent and Merger Sub have each determined that the Merger is advisable and in the best interests of each such entity and its respective stockholders and have approved and declared advisable this Agreement and the Merger;
WHEREAS, the board of directors of the Company (the "Company Board") has (a) determined that this Agreement and the Merger are fair to and in the best interests of the Company and its stockholders, (b) approved and declared advisable this Agreement and the transactions contemplated hereby, including the Merger, and (c) resolved to recommend that the stockholders of the Company approve and adopt this Agreement and the Merger (the "Company Board Recommendation");
WHEREAS, the holders of shares of capital stock of the Company representing a majority of the outstanding voting power have executed and delivered a written consent approving and adopting this Agreement and the Merger (the "Requisite Stockholder Approval");
WHEREAS, for United States federal income tax purposes, it is intended that the Merger shall qualify as a "reverse subsidiary merger" under applicable principles of Section 368 of the Internal Revenue Code of 1986, as amended (the "Code"), or alternatively, the parties reserve the right to make a joint election under Section 338(h)(10) of the Code with respect to the deemed acquisition of the Company's assets, as more fully set forth in Section 6.10 hereof;
WHEREAS, concurrently with the execution and delivery of this Agreement, and as a condition and inducement to the Company's willingness to enter into this Agreement, (a) Sponsor has delivered to the Company the Equity Commitment Letter (as defined herein), dated as of the date hereof, pursuant to which Sponsor has committed to contribute equity financing in the amount of $695,980,000 to Parent, and (b) the Debt Financing Sources (as defined herein) have delivered the Debt Commitment Letter (as defined herein), dated as of March 8, 2025, pursuant to which the Debt Financing Sources have committed to provide a $1,400,000,000 senior secured credit facility to fund a portion of the Aggregate Merger Consideration and related fees and expenses; and
WHEREAS, concurrently with the execution and delivery of this Agreement, certain members of the Company's management have entered into Rollover Agreements (as defined herein) with Parent, pursuant to which such management members have agreed to contribute a portion of their equity interests in the Company to Parent in exchange for equity interests in Parent, in the aggregate amount of $405,020,000.
NOW, THEREFORE, in consideration of the foregoing and the respective representations, warranties, covenants, and agreements set forth herein, and intending to be legally bound hereby, the parties agree as follows:
ARTICLE I — DEFINITIONS
Section 1.1 — Definitions
As used in this Agreement, the following terms shall have the meanings set forth below:
"Acquisition Proposal" means any inquiry, proposal, or offer from any Person (other than Parent, Merger Sub, or any of their respective Affiliates) relating to any (a) merger, consolidation, business combination, recapitalization, liquidation, dissolution, or similar transaction involving the Company or any of its Significant Subsidiaries, (b) acquisition, directly or indirectly, of assets constituting twenty percent (20%) or more of the consolidated total assets of the Company and its Subsidiaries, taken as a whole, or (c) acquisition, directly or indirectly, of twenty percent (20%) or more of the outstanding equity securities of the Company, in each case, whether in a single transaction or a series of related transactions.
"Affiliate" means, with respect to any Person, any other Person that directly or indirectly controls, is controlled by, or is under common control with such Person, as such term is defined in Rule 12b-2 promulgated under the Securities Exchange Act of 1934, as amended (the "Exchange Act").
"Aggregate Merger Consideration" means Two Billion Eight Hundred Million Dollars ($2,800,000,000), calculated as 140,000,000 Fully Diluted Shares multiplied by the Per Share Merger Consideration of $20.00 per share.
"Business Day" means any day other than a Saturday, Sunday, or a day on which commercial banking institutions in New York, New York are authorized or required by Law to close.
"Burdensome Condition" has the meaning set forth in Section 6.3(f).
"Cancelled Shares" has the meaning set forth in Section 3.1(c).
"Certificate of Merger" means the certificate of merger with respect to the Merger, in form and substance as required by, and executed and filed in accordance with, the relevant provisions of the DGCL.
"Change of Control" means the consummation of the Merger, which shall constitute a "change of control" (or similar concept) under the Company's existing customer contracts, credit agreements, employment agreements, equity incentive plans, and other agreements and instruments to which the Company or any of its Subsidiaries is a party or by which any of their respective assets are bound, to the extent so provided therein.
"Closing" has the meaning set forth in Section 2.2.
"Closing Date" means the date on which the Closing occurs, with a target closing date in the third quarter of 2025 (July through August 2025).
"Closing Net Working Capital" means the Net Working Capital of the Company and its Subsidiaries as of the close of business on the day immediately prior to the Closing Date, calculated in accordance with the accounting principles, methods, policies, practices, and procedures set forth on Schedule 3.6.
"Code" means the Internal Revenue Code of 1986, as amended, and the Treasury Regulations promulgated thereunder.
"Collar" has the meaning set forth in Section 3.6(b).
"Company Board" has the meaning set forth in the Recitals.
"Company Board Recommendation" has the meaning set forth in the Recitals.
"Company Common Stock" means the common stock, par value $0.001 per share, of the Company.
"Company Disclosure Schedules" means the disclosure schedules delivered by the Company to Parent and Merger Sub concurrently with the execution and delivery of this Agreement, organized by Section number corresponding to the applicable representations and warranties in Article IV.
"Company Material Adverse Effect" means any event, change, effect, development, condition, circumstance, or occurrence that, individually or in the aggregate, (a) has had or would reasonably be expected to have a material adverse effect on the business, assets, liabilities, financial condition, or results of operations of the Company and its Subsidiaries, taken as a whole, or (b) would reasonably be expected to prevent or materially delay the ability of the Company to consummate the Merger or the other transactions contemplated hereby; provided, however, that none of the following, individually or in the aggregate, shall be deemed to constitute, or shall be taken into account in determining whether there has been or would reasonably be expected to be, a Company Material Adverse Effect:
(i) changes in general economic, financial, or market conditions (including changes in prevailing interest rates, exchange rates, commodity prices, credit markets, capital markets, or economic and political conditions);
(ii) changes in conditions generally affecting the industry in which the Company and its Subsidiaries operate, including changes in supply, demand, pricing, competition, or technology;
(iii) changes in, or the adoption or proposed adoption of, any Law or GAAP (or any interpretation thereof by any Governmental Authority or accounting body);
(iv) the effects of COVID-19 or any pandemic, epidemic, or disease outbreak (including any governmental response thereto);
(v) any natural disaster, act of war (whether or not declared), armed hostilities, sabotage, terrorism, military action, or any escalation or worsening thereof, or similar force majeure event;
(vi) the announcement or pendency of this Agreement or the transactions contemplated hereby (including any impact on relationships with customers, suppliers, employees, partners, or regulators); or
(vii) any failure by the Company to meet any internal or published projections, estimates, or forecasts of revenue, earnings, or other financial or operating metrics for any period (it being understood and agreed that the underlying causes of any such failure may be taken into account in determining whether a Company Material Adverse Effect has occurred to the extent such underlying causes are not otherwise excluded by clauses (i) through (vi) above);
provided, further, that each of the exceptions in clauses (i) through (v) above shall apply only to the extent that such event, change, effect, development, condition, circumstance, or occurrence does not disproportionately affect the Company and its Subsidiaries, taken as a whole, relative to other similarly situated companies operating in the industry in which the Company and its Subsidiaries conduct their business.
"Confidentiality Agreement" means that certain Confidentiality Agreement, dated as of January 15, 2025, by and between Ardent Capital Partners III LP and the Company, as amended from time to time.
"Debt Commitment Letter" means that certain commitment letter, dated as of March 8, 2025, Reference Number SC-2025-0312-AC, from Stonebridge Credit Partners LLC, Birchwood Capital Finance LLC, and Ironvale Credit Fund III LP, providing for an aggregate senior secured credit facility of One Billion Four Hundred Million Dollars ($1,400,000,000), consisting of a $1,200,000,000 Term Loan B and a $200,000,000 Revolving Credit Facility, together with all exhibits, schedules, annexes, and fee letters attached thereto or delivered in connection therewith.
"Debt Financing" means the debt financing contemplated by the Debt Commitment Letter, including the Senior Secured Credit Facility, on the terms and subject to the conditions set forth therein.
"Debt Financing Sources" means, collectively, Stonebridge Credit Partners LLC, Birchwood Capital Finance LLC, Ironvale Credit Fund III LP, and any other lenders, agents, arrangers, bookrunners, or other entities that are parties to the Debt Commitment Letter or any joinder, supplement, or amendment thereto, together with their respective Affiliates and the respective officers, directors, employees, agents, representatives, and successors of each of the foregoing.
"Deductible" has the meaning set forth in Section 9.3(b).
"DGCL" means the General Corporation Law of the State of Delaware, as amended from time to time.
"Effective Time" has the meaning set forth in Section 2.3.
"Employee Benefit Plans" means each "employee benefit plan" (as defined in Section 3(3) of ERISA) and each other employment, compensation, benefit, pension, retirement, deferred compensation, severance, change of control, retention, equity or equity-based incentive, fringe benefit, or similar plan, policy, program, agreement, or arrangement, in each case, that is sponsored, maintained, contributed to, or required to be contributed to by the Company or any of its Subsidiaries for the benefit of any current or former director, officer, employee, or individual independent contractor of the Company or any of its Subsidiaries.
"Equity Co-Investors" means Northvale Sovereign Holdings Ltd. (committed equity of $200,000,000) and Summit Ridge Capital Partners LP (committed equity of $100,000,000).
"Equity Commitment Letter" means that certain equity commitment letter from Ardent Capital Partners III LP to Parent, dated as of the date hereof, pursuant to which the Sponsor has committed to contribute Six Hundred Ninety-Five Million Nine Hundred Eighty Thousand Dollars ($695,980,000) in equity to Parent in connection with the Merger.
"Equity Financing" means the equity financing contemplated by the Equity Commitment Letter and the co-investment commitments of the Equity Co-Investors.
"ERISA" means the Employee Retirement Income Security Act of 1974, as amended.
"Escrow Agent" means Continental Fiduciary Trust Company, 60 Wall Street, 24th Floor, New York, New York 10005.
"Escrow Agreement" means that certain escrow agreement to be entered into on the Closing Date among Parent, the Stockholder Representatives, and the Escrow Agent, substantially in the form of Exhibit D attached hereto, with respect to the Escrow Amount, Escrow Account Reference: CFT-ESC-2025-7894.
"Escrow Amount" means One Hundred Forty Million Dollars ($140,000,000), representing five percent (5%) of the Aggregate Merger Consideration ($2,800,000,000 x 5%).
"Escrow Period" means the period commencing on the Closing Date and ending on the date that is eighteen (18) months after the Closing Date.
"Estimated Closing Statement" has the meaning set forth in Section 3.6(c).
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
"FIRPTA" means the Foreign Investment in Real Property Tax Act of 1980, as amended, and the rules and regulations promulgated thereunder.
"Fully Diluted Shares" means 140,000,000 shares of Company Common Stock on a fully diluted basis, determined on the date hereof after giving effect to the exercise, conversion, exchange, or settlement of all outstanding options, warrants, restricted stock units, and other rights to acquire shares of Company Common Stock.
"Fundamental Representations" means the representations and warranties set forth in Section 4.1 (Organization, Standing, and Corporate Power), Section 4.2 (Capitalization), Section 4.3 (Authority; Noncontravention), Section 4.17 (Brokers), Section 5.1 (Organization, Standing, and Corporate Power), Section 5.2 (Authority; Noncontravention), and Section 5.7 (Brokers).
"GAAP" means United States generally accepted accounting principles as in effect from time to time, applied on a consistent basis.
"Governmental Authority" means any federal, state, local, municipal, foreign, or supranational government, any governmental, regulatory, or administrative authority, agency, instrumentality, or commission, any court, tribunal, or judicial or arbitral body, or any self-regulatory organization.
"HSR Act" means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the rules and regulations promulgated thereunder.
"Independent Accounting Firm" means Pendleton & Associates LLP, or, if such firm is unable or unwilling to serve, such other nationally recognized independent accounting firm as Parent and the Stockholder Representatives shall mutually agree upon.
"Indemnification Cap" means Four Hundred Twenty Million Dollars ($420,000,000), representing fifteen percent (15%) of the Aggregate Merger Consideration ($2,800,000,000 x 15%).
"Knowledge" means, with respect to the Company, the actual knowledge of Dr. Stefan Kessler (Chief Executive Officer), Annelise Gruber (Chief Financial Officer), Dr. Markus Vogt (Chief Technology Officer), and Roland Merz (Chairman of the Board), in each case after reasonable inquiry of their respective direct reports.
"Law" means any federal, state, local, municipal, foreign, or supranational statute, law, ordinance, regulation, rule, code, executive order, injunction, judgment, decree, or requirement of any Governmental Authority.
"Losses" means any and all losses, damages, liabilities, claims, demands, judgments, fines, penalties, costs, and expenses (including reasonable attorneys' fees and expenses of investigation and defense).
"Mezzanine Financing" means the Three Hundred Million Dollar ($300,000,000) subordinated note issuance by Parent to Crestline Mezzanine Partners II LP, bearing an 11.5% PIK toggle coupon, with an eight (8) year maturity, and 2.0% warrant coverage, on the terms and subject to the conditions set forth in the mezzanine commitment letter delivered to the Company.
"Net Working Capital" means the current assets of the Company and its Subsidiaries (excluding cash, cash equivalents, and short-term investments) minus the current liabilities of the Company and its Subsidiaries (excluding the current portion of long-term indebtedness and any Transaction-related liabilities), in each case, calculated in accordance with the accounting principles, methods, policies, practices, and procedures set forth on Schedule 3.6.
"Notice Period" has the meaning set forth in Section 6.2(d).
"Order" means any order, judgment, injunction, decree, ruling, writ, assessment, or award of any Governmental Authority.
"Outside Date" means September 10, 2025, as such date may be extended to December 10, 2025 in accordance with Section 8.1(b)(i).
"Parent Indemnified Parties" has the meaning set forth in Section 9.2.
"Paying Agent" means Atlas Shareholder Services Inc., 6201 15th Avenue, Brooklyn, New York 11219.
"Payment Fund" has the meaning set forth in Section 3.2(a).
"Per Share Merger Consideration" means Twenty Dollars ($20.00) per share of Company Common Stock, calculated as the Aggregate Merger Consideration ($2,800,000,000) divided by the Fully Diluted Shares (140,000,000).
"Person" means an individual, corporation, partnership, limited liability company, joint venture, association, trust, estate, unincorporated organization, Governmental Authority, or any other entity.
"Post-Closing Statement" has the meaning set forth in Section 3.6(d).
"R&W Insurance Policy" means that certain representations and warranties insurance policy, Policy Number GSI-RWI-2025-04821, issued by Grandview Specialty Insurance Company, with a policy limit of $420,000,000 and a retention of $14,000,000 (split equally between Parent and the Stockholder Representatives at $7,000,000 each), placed by Ashbury Risk Advisors LLC.
"Requisite Stockholder Approval" has the meaning set forth in the Recitals.
"Reverse Termination Fee" means One Hundred Forty Million Dollars ($140,000,000), representing five percent (5%) of the Aggregate Merger Consideration.
"Rollover Agreements" means, collectively, the rollover agreements entered into concurrently herewith between Parent and each of Dr. Stefan Kessler, Annelise Gruber, Dr. Markus Vogt, and certain other management and employee equityholders of the Company, providing for aggregate rollover equity of Four Hundred Five Million Twenty Thousand Dollars ($405,020,000), in substantially the form of Exhibit E attached hereto.
"Rollover Participants" means (a) Dr. Stefan Kessler (holding approximately 8.5% equity in the Company; rolling over approximately 60% of such equity, or approximately $142,800,000), (b) Annelise Gruber (holding approximately 4.2% equity; rolling over approximately 50%, or approximately $58,800,000), (c) Dr. Markus Vogt (holding approximately 3.8% equity; rolling over approximately 55%, or approximately $58,520,000), and (d) other management and employee holders (holding, in the aggregate, approximately 11.5% equity; rolling over approximately 45%, or approximately $144,900,000).
"Rollover Shares" means the shares of Company Common Stock contributed (or to be contributed) by the Rollover Participants to Parent pursuant to the Rollover Agreements.
"Seller Indemnified Parties" has the meaning set forth in Section 9.5.
"Senior Secured Credit Facility" means the $1,400,000,000 senior secured credit facility to be provided by the Debt Financing Sources, consisting of (a) a Term Loan B in the principal amount of $1,200,000,000, bearing interest at SOFR plus 475 basis points, with a seven (7) year maturity, 1.00% original issue discount, and 1% per annum amortization, and (b) a Revolving Credit Facility in the aggregate amount of $200,000,000, bearing interest at SOFR plus 425 basis points, with a five (5) year maturity, which shall be undrawn at the Closing.
"Share" means each share of Company Common Stock.
"Significant Subsidiary" means any Subsidiary of the Company that meets the thresholds set forth in Rule 1-02(w) of Regulation S-X promulgated under the Exchange Act.
"Solvent" means, with respect to any Person and its Subsidiaries on a consolidated basis as of any date of determination, that (a) the fair saleable value of the property and assets of such Person and its Subsidiaries on a consolidated basis exceeds the total amount of the liabilities (including contingent liabilities) of such Person and its Subsidiaries on a consolidated basis, (b) such Person and its Subsidiaries on a consolidated basis are able to pay their debts and obligations in the ordinary course of business as they become due, and (c) such Person and its Subsidiaries on a consolidated basis do not have unreasonably small capital for the conduct of their business.
"Sponsor" means Ardent Capital Partners III LP, a Delaware limited partnership.
"Stockholder Representatives" means Ridgeline Growth Equity Fund II LP (Jonathan Ashford, Managing Partner) and Meridian Venture Partners IV LP (Claire Fujimoto, Managing Partner), acting jointly.
"Subsidiary" means, with respect to any Person, any entity in which such Person (or one or more other Subsidiaries of such Person, or a combination thereof) directly or indirectly owns more than fifty percent (50%) of the outstanding equity interests, including the power to vote or direct the voting of sufficient securities to elect a majority of the board of directors or similar governing body. With respect to the Company, "Subsidiary" includes, without limitation, Luminex Systems AG (a Swiss Aktiengesellschaft, Commercial Register No. CHE-284.391.057), Luminex Systems Inc. (a Delaware corporation, EIN: 86-2547210), Luminex Systems UK Ltd. (a private limited company organized under the laws of England and Wales, Company No. 12847362), Luminex Systems GmbH (a Gesellschaft mit beschränkter Haftung organized under the laws of Germany, HRB No. HRB 247891, Munich), and Luminex Systems Pte. Ltd. (a private limited company organized under the laws of Singapore, UEN: 201924781K).
"Superior Proposal" means a bona fide written Acquisition Proposal (with references therein to twenty percent (20%) replaced by fifty percent (50%)) that the Company Board determines in good faith, after consultation with Pinehurst Rothwell & Co. (the Company's financial advisor) and Caldwell, Raines & Sheppard LLP (the Company's outside legal counsel), and taking into account all legal, financial, regulatory, and other factors deemed relevant by the Company Board (including the terms and conditions of such Acquisition Proposal and the identity and financial capability of the Person making such Acquisition Proposal), (a) is more favorable to the Company's stockholders from a financial point of view than the transactions contemplated by this Agreement (after giving effect to any revised proposal by Parent pursuant to Section 6.2(d)) and (b) is reasonably likely to be consummated in accordance with its terms, taking into account all legal, financial, regulatory, and other aspects of such proposal.
"Surviving Corporation" means the Company, as the surviving corporation of the Merger.
"Target Net Working Capital" means Forty-Eight Million Five Hundred Thousand Dollars ($48,500,000).
"Target Termination Fee" means Eighty-Four Million Dollars ($84,000,000), representing three percent (3%) of the Aggregate Merger Consideration.
"Tax" or "Taxes" means all federal, state, local, or foreign income, gross receipts, license, payroll, employment, excise, severance, stamp, occupation, premium, windfall profits, environmental (including taxes under Section 59A of the Code), customs duties, capital stock, franchise, profits, withholding, social security (or similar), unemployment, disability, real property, personal property, sales, use, transfer, registration, value added, alternative or add-on minimum, estimated, or other tax of any kind whatsoever, including any interest, penalty, or addition thereto.
"Tax Return" means any return, declaration, report, claim for refund, information return, or statement relating to Taxes, including any schedule or attachment thereto, and including any amendment thereof.
"Transaction Documents" means, collectively, this Agreement, the Equity Commitment Letter, the Debt Commitment Letter, the Confidentiality Agreement, the Rollover Agreements, the Escrow Agreement, and each other agreement, certificate, or instrument delivered or to be delivered in connection with the transactions contemplated hereby.
"Working Capital Collar" means the range of plus or minus Two Million Five Hundred Thousand Dollars ($2,500,000) from the Target Net Working Capital, such that no adjustment to the Aggregate Merger Consideration shall be made if the Closing Net Working Capital is between $46,000,000 and $51,000,000.
Section 1.2 — Interpretation
(a) The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. All references herein to "Sections," "Articles," "Exhibits," and "Schedules" shall be deemed to refer to Sections of, Articles of, Exhibits to, and Schedules to this Agreement, unless otherwise specified. The words "hereof," "herein," "hereto," and "hereunder" and words of similar import, when used in this Agreement, shall refer to this Agreement as a whole (including all Exhibits and Schedules hereto) and not to any particular provision of this Agreement.
(b) Whenever the words "include," "includes," or "including" are used in this Agreement, they shall be deemed to be followed by the words "without limitation." The word "or" shall not be exclusive. References to "$" or "dollars" shall mean United States dollars unless otherwise specified. References to "days" shall mean calendar days unless otherwise specified as Business Days.
(c) Words in the singular shall be held to include the plural and vice versa, and words of one gender shall be held to include the other genders as the context requires. The terms "party" and "parties" shall refer to the parties to this Agreement unless the context clearly indicates otherwise.
(d) The parties have participated jointly in the negotiation and drafting of this Agreement. In the event of an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provisions of this Agreement.
(e) Any reference to any statute shall be deemed also to refer to all rules, regulations, and orders promulgated thereunder, unless the context requires otherwise, and any reference to any statute, rule, regulation, or order shall be deemed to refer to such statute, rule, regulation, or order as amended, supplemented, or otherwise modified from time to time (and, in the case of any statute, to any successor provision).
(f) Any reference to a "writing" or "written" includes any electronic mail or other communication transmitted in electronic or digital form.
ARTICLE II — THE MERGER
Section 2.1 — The Merger
Upon the terms and subject to the conditions set forth in this Agreement, and in accordance with the DGCL, at the Effective Time, Merger Sub shall be merged with and into the Company (the "Merger"). As a result of the Merger, the separate corporate existence of Merger Sub shall thereupon cease, and the Company shall continue as the Surviving Corporation and shall be a wholly owned subsidiary of Parent. For the avoidance of doubt, the Merger is structured as a reverse triangular merger, in which Merger Sub, a wholly owned subsidiary of Parent, is the disappearing entity and the Company is the surviving entity.
Section 2.2 — Closing
The closing of the Merger (the "Closing") shall take place on the third (3rd) Business Day following the satisfaction or waiver (to the extent waiver is permitted by applicable Law) of all of the conditions set forth in Article VII (other than those conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction or waiver of such conditions at the Closing), at 10:00 a.m., Eastern Time, at the offices of Calderwood & Harkness LLP, 7 Times Square, New York, New York 10036, or by the electronic exchange of documents and other closing deliveries (including by email delivery of executed documents in ".pdf" format), unless the parties mutually agree in writing on another date, time, or place. The date on which the Closing actually occurs is referred to herein as the "Closing Date." The parties anticipate that the Closing will occur in the third quarter of 2025 (July through August 2025), subject to the satisfaction or waiver of the conditions set forth herein.
Section 2.3 — Effective Time
On the Closing Date, the parties shall cause a Certificate of Merger to be executed, acknowledged, and filed with the Secretary of State of the State of Delaware in accordance with Section 251 of the DGCL. The Merger shall become effective at such time as the Certificate of Merger is duly filed with the Secretary of State of the State of Delaware or at such later time as Parent and the Company may mutually agree upon and specify in the Certificate of Merger in accordance with the DGCL (the time the Merger becomes effective being referred to herein as the "Effective Time").
Section 2.4 — Effects of the Merger
The Merger shall have the effects set forth in this Agreement and in Sections 251 and 259 of the DGCL and all other applicable provisions of the DGCL. Without limiting the generality of the foregoing, and subject thereto, at the Effective Time, all of the property, rights, privileges, powers, immunities, and franchises of the Company and Merger Sub shall vest in the Surviving Corporation, and all debts, liabilities, obligations, restrictions, and duties of the Company and Merger Sub shall become the debts, liabilities, obligations, restrictions, and duties of the Surviving Corporation.
Section 2.5 — Certificate of Incorporation of the Surviving Corporation
At the Effective Time, the certificate of incorporation of the Company, as in effect immediately prior to the Effective Time, shall be amended and restated in its entirety in the form of Exhibit A attached hereto and, as so amended and restated, shall be the certificate of incorporation of the Surviving Corporation (the "Surviving Corporation Charter") until thereafter amended in accordance with its terms, this Agreement, and applicable Law; provided, however, that the Surviving Corporation Charter shall include such provisions as are required pursuant to Section 6.6 with respect to the indemnification and exculpation of former directors and officers of the Company and its Subsidiaries.
Section 2.6 — Bylaws of the Surviving Corporation
At the Effective Time, the bylaws of the Surviving Corporation shall be amended and restated in their entirety in the form of Exhibit B attached hereto and, as so amended and restated, shall be the bylaws of the Surviving Corporation (the "Surviving Corporation Bylaws") until thereafter amended in accordance with their terms, the Surviving Corporation Charter, and applicable Law; provided, however, that the Surviving Corporation Bylaws shall include such provisions as are required pursuant to Section 6.6 with respect to the indemnification and advancement of expenses for former directors and officers of the Company and its Subsidiaries.
Section 2.7 — Directors and Officers of the Surviving Corporation
The directors and officers of Merger Sub immediately prior to the Effective Time shall be the initial directors and officers, respectively, of the Surviving Corporation, each to hold office in accordance with the Surviving Corporation Charter and the Surviving Corporation Bylaws until their respective successors are duly elected or appointed and qualified, or until their earlier death, resignation, or removal in accordance with applicable Law and the organizational documents of the Surviving Corporation.
ARTICLE III — CONVERSION OF SECURITIES; MERGER CONSIDERATION
Section 3.1 — Conversion of Capital Stock
At the Effective Time, by virtue of the Merger and without any action on the part of any holder of any capital stock of the Company or Merger Sub:
(a) Company Common Stock. Each share of Company Common Stock issued and outstanding immediately prior to the Effective Time (each, a "Share"), other than Cancelled Shares and Rollover Shares, shall be converted into the right to receive Twenty Dollars ($20.00) per Share in cash, without interest (the "Per Share Merger Consideration"), upon surrender of the certificate representing such Share (or, in the case of book-entry shares, upon delivery of a properly completed letter of transmittal and such other documents as the Paying Agent may reasonably require). From and after the Effective Time, all such Shares shall no longer be outstanding and shall automatically be cancelled and shall cease to exist, and each holder of a certificate that immediately prior to the Effective Time represented any such Shares shall cease to have any rights with respect thereto, except the right to receive the Per Share Merger Consideration, without interest, upon the surrender of such certificate in accordance with Section 3.2.
(b) Aggregate Merger Consideration. The aggregate consideration payable in respect of all Shares (other than Cancelled Shares and Rollover Shares) shall be Two Billion Eight Hundred Million Dollars ($2,800,000,000) (the "Aggregate Merger Consideration"), based on 140,000,000 Fully Diluted Shares multiplied by the Per Share Merger Consideration of $20.00 per Share, subject to the adjustments set forth in Section 3.5 and Section 3.6.
(c) Cancelled Shares. Each Share held in the treasury of the Company, or owned by Parent, Merger Sub, or any direct or indirect wholly owned Subsidiary of the Company immediately prior to the Effective Time (collectively, the "Cancelled Shares"), shall be cancelled and extinguished without any conversion thereof and without any consideration being paid or payable with respect thereto. No payment shall be made in respect of any Cancelled Shares.
(d) Rollover Shares. Each Rollover Share contributed or to be contributed by a Rollover Participant to Parent pursuant to the applicable Rollover Agreement shall not be converted into the right to receive the Per Share Merger Consideration and shall instead be treated in accordance with the terms and conditions of the applicable Rollover Agreement. The aggregate value of the Rollover Shares is Four Hundred Five Million Twenty Thousand Dollars ($405,020,000).
(e) Merger Sub Stock. At the Effective Time, each share of common stock of Merger Sub issued and outstanding immediately prior to the Effective Time shall be converted into and become one (1) validly issued, fully paid, and nonassessable share of common stock of the Surviving Corporation. From and after the Effective Time, all certificates representing shares of common stock of Merger Sub shall be deemed for all purposes to represent the number of shares of common stock of the Surviving Corporation into which such shares have been converted.
Section 3.2 — Payment Procedures
(a) Payment Fund. Prior to the Effective Time, Parent shall deposit, or cause to be deposited, with the Paying Agent cash in an amount sufficient to pay the aggregate Per Share Merger Consideration to all holders of Shares (other than Cancelled Shares and Rollover Shares) in accordance with this Article III (such aggregate amount, the "Payment Fund"). The Payment Fund shall be invested by the Paying Agent as directed by Parent in (i) short-term direct obligations of the United States of America, (ii) obligations for which the full faith and credit of the United States of America is pledged to provide for the payment of principal and interest, or (iii) commercial paper obligations rated A-1+ by Standard & Poor's or P-1 by Moody's; provided that any interest or other income earned on the Payment Fund shall be for the account of Parent and that no investment of the Payment Fund shall relieve Parent, Merger Sub, or the Surviving Corporation of their obligations to pay the Per Share Merger Consideration as provided herein.
(b) Letter of Transmittal. As promptly as practicable after the Effective Time, and in any event within five (5) Business Days thereafter, the Surviving Corporation shall cause the Paying Agent to mail or deliver to each holder of record of one or more certificates that immediately prior to the Effective Time represented Shares (other than Cancelled Shares and Rollover Shares) (i) a letter of transmittal in substantially the form of Exhibit C attached hereto, which shall specify that delivery shall be effected, and risk of loss and title to the certificates shall pass, only upon proper delivery of the certificates (or affidavits of loss in lieu thereof in accordance with Section 3.2(f)) to the Paying Agent and shall be in such form and have such other provisions as Parent and the Company may mutually agree upon, and (ii) instructions for use in effecting the surrender of the certificates (or book-entry shares) in exchange for the Per Share Merger Consideration.
(c) Delivery of Merger Consideration. Upon surrender of certificates for cancellation to the Paying Agent, together with such letter of transmittal, duly executed and completed in accordance with the instructions thereto, and such other documents as may be reasonably required pursuant to such instructions, the holder of such certificates shall be entitled to receive in exchange therefor the Per Share Merger Consideration of $20.00 per Share represented by such certificates (or, in the case of book-entry shares, upon compliance with applicable book-entry transfer procedures), without interest, less any amounts required to be deducted or withheld pursuant to Section 3.2(e), and the certificates so surrendered shall forthwith be cancelled. Until surrendered as contemplated by this Section 3.2, each certificate (or book-entry share) shall be deemed after the Effective Time to represent only the right to receive, upon such surrender, the applicable Per Share Merger Consideration, without interest.
(d) No Interest. No interest shall accrue or be paid on the Per Share Merger Consideration upon the surrender of any certificate (or book-entry share) for the benefit of the holder of such certificate (or book-entry share), regardless of the time of surrender.
(e) Withholding Rights. Parent, the Surviving Corporation, and the Paying Agent shall each be entitled to deduct and withhold from any amounts otherwise payable pursuant to this Agreement to any holder of Shares such amounts as are required to be deducted or withheld with respect to the making of such payment under the Code, FIRPTA, or any applicable provision of federal, state, local, or foreign Tax Law. To the extent that amounts are so deducted and withheld by Parent, the Surviving Corporation, or the Paying Agent, as the case may be, and timely paid over to the applicable Governmental Authority, such deducted and withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of Shares in respect of which such deduction and withholding was made.
(f) Lost Certificates. If any certificate shall have been lost, stolen, or destroyed, upon the making of an affidavit of that fact by the Person claiming such certificate to be lost, stolen, or destroyed and, if required by the Surviving Corporation or the Paying Agent, the posting by such Person of a bond, in such reasonable amount as the Surviving Corporation or the Paying Agent may direct, as indemnity against any claim that may be made against it with respect to such certificate, the Paying Agent will issue in exchange for such lost, stolen, or destroyed certificate the applicable Per Share Merger Consideration deliverable in respect thereof pursuant to this Agreement.
(g) Termination of Payment Fund. Any portion of the Payment Fund that remains undistributed to former holders of Shares for twelve (12) months after the Effective Time shall be delivered by the Paying Agent to the Surviving Corporation, upon demand of the Surviving Corporation, and any holders of Shares who have not theretofore complied with this Section 3.2 shall thereafter look only to the Surviving Corporation (subject to abandoned property, escheat, or other similar Laws) for payment of their claim for the Per Share Merger Consideration. None of Parent, the Surviving Corporation, the Paying Agent, or any other Person shall be liable to any holder of Shares for any amount properly delivered to a public official pursuant to any applicable abandoned property, escheat, or similar Law.
Section 3.3 — Escrow
At the Closing, an amount equal to the Escrow Amount of One Hundred Forty Million Dollars ($140,000,000) shall be withheld from the aggregate Per Share Merger Consideration otherwise payable to the cashing-out stockholders of the Company on a pro rata basis (based on the number of Shares held by each such stockholder relative to the total number of Shares being cashed out) and shall be deposited with the Escrow Agent pursuant to the Escrow Agreement (Escrow Account Reference: CFT-ESC-2025-7894). The Escrow Amount shall be held in the Escrow Account for the Escrow Period and shall be available to satisfy any indemnification claims of the Parent Indemnified Parties pursuant to Article IX, subject to the terms and conditions of the Escrow Agreement. Any portion of the Escrow Amount remaining in the Escrow Account upon the expiration of the Escrow Period (after deduction of amounts in respect of any pending and unresolved claims) shall be released to the Stockholder Representatives for distribution to the cashing-out stockholders on a pro rata basis in accordance with the Escrow Agreement.
Section 3.4 — Treatment of Company Equity Awards
(a) Stock Options. At the Effective Time, each option to purchase shares of Company Common Stock (each, a "Company Option") that is outstanding and unexercised immediately prior to the Effective Time, whether or not then vested or exercisable, shall be cancelled and converted into the right to receive a cash payment (without interest) equal to the product of (i) the excess, if any, of the Per Share Merger Consideration ($20.00) over the exercise price per Share of such Company Option, multiplied by (ii) the total number of Shares subject to such Company Option immediately prior to the Effective Time, less any applicable withholding Taxes. For the avoidance of doubt, any Company Option with an exercise price per Share equal to or exceeding the Per Share Merger Consideration ($20.00) shall be cancelled at the Effective Time without any consideration being paid or payable with respect thereto, and such cancellation shall be deemed to constitute full satisfaction of all obligations with respect to such Company Option.
(b) Restricted Stock Units. At the Effective Time, each restricted stock unit award in respect of shares of Company Common Stock (each, a "Company RSU") that is outstanding immediately prior to the Effective Time, whether or not then vested, shall be cancelled and converted into the right to receive a cash payment (without interest) equal to the product of (i) the Per Share Merger Consideration ($20.00), multiplied by (ii) the total number of Shares subject to such Company RSU immediately prior to the Effective Time, less any applicable withholding Taxes.
(c) Other Equity Awards. At the Effective Time, each other equity or equity-based award of the Company that is outstanding immediately prior to the Effective Time (including any phantom stock, stock appreciation right, profit interest, or other similar award) shall be cancelled and converted into the right to receive the applicable cash payment determined in a manner consistent with Section 3.4(a) or Section 3.4(b), as applicable, based on the terms of such award and the Per Share Merger Consideration, less any applicable withholding Taxes.
(d) Company Actions. Prior to the Effective Time, the Company shall take all actions necessary to effectuate the treatment of Company Options, Company RSUs, and other equity awards as contemplated by this Section 3.4, including, without limitation, (i) adopting resolutions of the Company Board (or the compensation committee thereof), (ii) amending the Company's equity incentive plans and any applicable award agreements, (iii) delivering all required notices to holders of equity awards, and (iv) obtaining any required consents from holders of equity awards, in each case in form and substance reasonably satisfactory to Parent.
Section 3.5 — Adjustments
The Per Share Merger Consideration and any other amounts payable pursuant to this Article III shall be equitably adjusted (without duplication) to reflect fully the appropriate effect of any stock split, reverse stock split, stock dividend (including any dividend or other distribution of securities convertible into Company Common Stock), reclassification, recapitalization, reorganization, or other similar transaction with respect to the Company Common Stock occurring (or for which a record date is established) between the date of this Agreement and the Effective Time. Nothing in this Section 3.5 shall be construed to permit the Company to take any action prohibited by this Agreement, including Section 6.1.
Section 3.6 — Working Capital Adjustment
(a) Target Net Working Capital. The Target Net Working Capital is Forty-Eight Million Five Hundred Thousand Dollars ($48,500,000). Net Working Capital shall be calculated in accordance with the accounting principles, methods, policies, practices, and procedures set forth on Schedule 3.6.
(b) Working Capital Collar. No adjustment to the Aggregate Merger Consideration shall be made if the Closing Net Working Capital falls within the range of Forty-Six Million Dollars ($46,000,000) to Fifty-One Million Dollars ($51,000,000) (such range, the "Collar"). The Collar represents a variance of plus or minus Two Million Five Hundred Thousand Dollars ($2,500,000) from the Target Net Working Capital.
(c) Estimated Closing Statement. Not later than two (2) Business Days prior to the Closing Date, the Company shall prepare and deliver to Parent a statement setting forth the Company's good faith estimate of Closing Net Working Capital and a calculation of the estimated adjustment amount, if any (the "Estimated Closing Statement"). The Estimated Closing Statement shall be prepared in accordance with the accounting principles, methods, policies, practices, and procedures set forth on Schedule 3.6. If the estimated Closing Net Working Capital set forth in the Estimated Closing Statement exceeds the upper bound of the Collar ($51,000,000), the Aggregate Merger Consideration payable at Closing shall be increased, dollar for dollar, by the amount of such excess. If the estimated Closing Net Working Capital set forth in the Estimated Closing Statement is less than the lower bound of the Collar ($46,000,000), the Aggregate Merger Consideration payable at Closing shall be decreased, dollar for dollar, by the amount of such shortfall.
(d) Post-Closing True-Up. Within ninety (90) calendar days after the Closing Date, Parent shall cause the Surviving Corporation to prepare and deliver to the Stockholder Representatives a statement setting forth Parent's calculation of Closing Net Working Capital (the "Post-Closing Statement"). The Post-Closing Statement shall be prepared in accordance with the accounting principles, methods, policies, practices, and procedures set forth on Schedule 3.6. The Stockholder Representatives shall have thirty (30) calendar days following receipt of the Post-Closing Statement (the "Review Period") to review the Post-Closing Statement and to notify Parent in writing of any objections thereto (a "Dispute Notice"). The Dispute Notice shall specify in reasonable detail the items in dispute and the amounts thereof. If the Stockholder Representatives do not deliver a Dispute Notice within the Review Period, the Post-Closing Statement shall be deemed final, binding, and conclusive upon the parties. If the Stockholder Representatives deliver a timely Dispute Notice, the parties shall attempt in good faith to resolve any disputed items during the thirty (30) day period following Parent's receipt of the Dispute Notice. Any items remaining in dispute at the expiration of such period shall be submitted for final determination to the Independent Accounting Firm (Pendleton & Associates LLP), which shall act as an expert and not as an arbitrator and whose determination shall be final, conclusive, and binding upon the parties, absent manifest error. The Independent Accounting Firm shall be instructed to render its determination within thirty (30) calendar days of the submission of the dispute. The fees and expenses of the Independent Accounting Firm shall be allocated between Parent and the Stockholder Representatives based on the proportion of the contested amount resolved in favor of each party (i.e., the party whose position is ultimately determined to be further from the Independent Accounting Firm's determination shall bear a proportionally greater share of such fees and expenses).
(e) Adjustment Payment. If the final Closing Net Working Capital, as determined in accordance with this Section 3.6 (the "Final Closing Net Working Capital"), exceeds the upper bound of the Collar ($51,000,000), Parent shall pay to the Stockholder Representatives (for the benefit of the cashing-out stockholders on a pro rata basis) an amount equal to such excess, by wire transfer of immediately available funds within five (5) Business Days of the final determination of the Final Closing Net Working Capital. If the Final Closing Net Working Capital is less than the lower bound of the Collar ($46,000,000), the Stockholder Representatives shall pay to Parent an amount equal to such deficiency from the Escrow Amount or, if the Escrow Amount is insufficient to satisfy such deficiency in full, the Stockholder Representatives shall be responsible for the payment of the remaining deficiency by wire transfer of immediately available funds within five (5) Business Days of the final determination. To the extent any Estimated Closing Statement adjustment was made at Closing, the post-closing adjustment pursuant to this Section 3.6(e) shall be calculated on a net basis (taking into account the adjustment, if any, made at Closing).
ARTICLE IV — REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to Parent and Merger Sub as of the date hereof and as of the Closing Date (except where a representation or warranty is expressly stated to be made as of a specific date, in which case such representation or warranty shall be made only as of such specific date), subject to the exceptions set forth in the corresponding sections or subsections of the Company Disclosure Schedules (it being agreed that disclosure of any item in any section or subsection of the Company Disclosure Schedules shall be deemed to be disclosed with respect to any other section or subsection of this Article IV to the extent the relevance of such item to such other section or subsection is reasonably apparent on the face of such disclosure), as follows:
Section 4.1 — Organization, Standing, and Corporate Power
(a) The Company is a corporation duly incorporated, validly existing, and in good standing under the laws of the State of Delaware. The Company has the requisite corporate power and authority to own, lease, and operate its properties and assets and to carry on its business as currently conducted. The Company is duly qualified or licensed to do business as a foreign corporation and is in good standing in each jurisdiction where the character of its properties owned or leased or the nature of its activities makes such qualification or licensing necessary, except where the failure to be so duly qualified or licensed and in good standing would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect.
(b) Each Subsidiary of the Company, including Luminex Systems AG (a Swiss Aktiengesellschaft, Commercial Register No. CHE-284.391.057), Luminex Systems Inc. (a Delaware corporation, EIN: 86-2547210), Luminex Systems UK Ltd. (a private limited company organized under the laws of England and Wales, Company No. 12847362), Luminex Systems GmbH (a Gesellschaft mit beschränkter Haftung organized under the laws of Germany, HRB No. HRB 247891, Munich), and Luminex Systems Pte. Ltd. (a private limited company organized under the laws of Singapore, UEN: 201924781K), is duly organized, validly existing, and in good standing (where applicable under the laws of the relevant jurisdiction) under the laws of its jurisdiction of organization and has the requisite power and authority to own, lease, and operate its properties and to carry on its business as currently conducted. Each such Subsidiary is duly qualified or licensed to do business as a foreign entity and is in good standing (where applicable) in each jurisdiction where the character of the properties owned or leased by it or the nature of its activities makes such qualification or licensing necessary, except where the failure to be so duly qualified or licensed and in good standing would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect.
(c) The Company has made available to Parent complete and correct copies of the certificate of incorporation and bylaws (or equivalent organizational documents) of the Company and each of its Subsidiaries, in each case as currently in effect. Neither the Company nor any of its Subsidiaries is in violation of any provision of its organizational documents.
Section 4.2 — Capitalization
(a) The authorized capital stock of the Company consists of 250,000,000 shares of Company Common Stock, par value $0.001 per share, of which 140,000,000 shares are issued and outstanding on a fully diluted basis as of the date hereof. All outstanding shares of Company Common Stock are duly authorized, validly issued, fully paid, and nonassessable and were not issued in violation of any preemptive rights, rights of first refusal, or similar rights. No shares of Company Common Stock are held in the treasury of the Company.
(b) Section 4.2(b) of the Company Disclosure Schedules sets forth a complete and correct list, as of the date hereof, of all outstanding Company Options, Company RSUs, and any other rights to acquire or receive shares of Company Common Stock, including for each such award: the holder thereof, the number of shares subject thereto, the exercise price (if applicable), the grant date, the vesting schedule, and the expiration date.
(c) As of the date hereof, the pre-transaction ownership of the Company is as follows: Ridgeline Growth Equity Fund II LP (52%), Meridian Venture Partners IV LP (20%), and management and employees (28%).
(d) Except as set forth in Section 4.2(b) of the Company Disclosure Schedules, there are no outstanding (i) shares of capital stock of, or other equity or voting interests in, the Company, (ii) securities of the Company convertible into or exchangeable for shares of capital stock of, or other equity or voting interests in, the Company, (iii) options, warrants, or other rights to acquire from the Company, or obligations of the Company to issue, shares of capital stock of, or other equity or voting interests in, the Company, or securities convertible into or exchangeable for shares of capital stock of, or other equity or voting interests in, the Company, or (iv) obligations of the Company to repurchase, redeem, or otherwise acquire any such securities or to make any investment in any other Person.
Section 4.3 — Authority; Noncontravention
(a) The Company has all necessary corporate power and authority to execute and deliver this Agreement, to perform its obligations hereunder, and to consummate the transactions contemplated hereby, including the Merger, subject only to the filing of the Certificate of Merger with the Secretary of State of the State of Delaware in accordance with the DGCL. The execution, delivery, and performance of this Agreement and the consummation of the Merger and the other transactions contemplated hereby have been duly and validly authorized by all necessary corporate action on the part of the Company, including the unanimous approval and declaration of advisability by the Company Board and the Requisite Stockholder Approval.