Item 7.01.
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Regulation FD Disclosure.
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On May 18, 2016, pursuant to its obligations under the Merger Agreement,
Nanosphere, through its counsel, delivered to the Company, through its counsel, a copy of a letter from a third party (the Third Party) that Nanosphere deemed a Takeover Proposal at a price per share in cash of $1.50 per Share (the
May 18 Letter).
On May 18, 2016, pursuant to its obligations under the Merger Agreement, Nanosphere, through its counsel, delivered to
the Company, through its counsel, a copy of the May 18 Letter and advised the Company that Nanosphere would have a Board meeting on May 20, 2016 to consider the letter.
On May 19, 2016, the Companys Board of Directors met and received an update on recent developments from the Companys counsel and advisors.
On May 20, 2016, Nanosphere, through its counsel, delivered to the Company, through its counsel, notice that the Nanosphere board of directors had
made a determination upon advice of outside legal counsel and its financial advisor, that the May 18 Letter was a Takeover Proposal that could reasonably be expected to result in a Superior Offer as contemplated by the Merger Agreement, that
the Company would supply the Third Party with non-public information, initially consisting of the Disclosure Letter to the Merger Agreement, that the Nanosphere Board would meet again on May 24, 2016 to consider whether the May 18 Letter
was a Superior Offer and that Nanosphere intended to comply with all of its obligations to the Company under the Merger Agreement.
On the afternoon of
May 20, 2016, the Company, through its counsel, delivered to Nanosphere and its counsel the proposed Amendment. Such proposed Amendment provided that the proposal would expire at noon, Eastern Daylight time on May 23, 2016 unless accepted
by Nanosphere at or prior to such time.
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That same afternoon, Nanosphere, through its counsel, informed the Company, through its counsel, that the
Nanosphere board of directors would convene on the evening of May 22, 2016, to consider the Amendment.
On Sunday, May 22, 2016, Nanosphere,
through its counsel, informed the Company, through its counsel, that the Nanosphere board had approved the Amendment and delivered a fully executed Amendment.
On May 23, 2016, the Company and Nanosphere issued a joint press release announcing the execution of the Amendment described above, and Homi Shamir, the
Chief Executive Officer of the Company, sent an email to the employees of the Company. A copy of the press release is furnished as Exhibit 99.1 hereto, and a copy of the email to the employees of the Company is furnished as Exhibit 99.2 hereto.
Important Information
The tender offer described in this
communication has not yet commenced. This communication is provided for informational purposes only and does not constitute an offer to purchase or the solicitation of an offer to sell any securities. At the time the tender offer is commenced, the
Company and Merger Subsidiary intend to file with the SEC a Tender Offer Statement on Schedule TO containing an offer to purchase, a form of letter of transmittal and other documents relating to the tender offer, and Nanosphere intends to file with
the SEC a Solicitation/Recommendation Statement on Schedule 14D-9 with respect to the tender offer. The Company, Merger Subsidiary, and Nanosphere intend to mail these documents to the Nanosphere common stockholders. Investors and shareholders
should read those filings carefully when they become available as they will contain important information about the tender offer. Those documents, as well as the Companys other public filings with the SEC, may be obtained without charge at the
SECs website at www.sec.gov and at the Companys website at www.luminexcorp.com.
Cautionary Statement Regarding Forward-Looking Statements
Certain statements in this press release, including statements regarding the proposed transaction between the Company and Nanosphere, the
Companys and Nanosphere financial results and estimates and/or business prospects, the combined companys plans, objectives, expectations and intentions, leadership in biological testing technologies in the clinical diagnostic and
life science industries and the expected size, scope and growth of the combined companys operations and the markets in which it will operate, expected synergies, as well as the expected timing and benefits of the transaction, may contain words
such as expects, may, potential, upside, approximately, project, would, could, should, will, anticipates,
believes, intends, estimates, targets, plans, envisions, seeks and other similar language and are considered forward-looking statements or information under
applicable securities laws. These statements are based on the Companys current expectations, estimates, forecasts and projections about the proposed transaction and the operating environment, economies and markets in which the Company and
Nanosphere operate, are subject to important risks and uncertainties that are difficult to predict and the actual outcome may be materially different. These statements reflect beliefs and assumptions that are based on the Companys and
Nanosphere perception of historical trends, current conditions and expected future
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developments as well as other factors management believes are appropriate in the circumstances. In making these statements, the Company and Nanosphere have made assumptions with respect to the
ability of the Company and Nanosphere to achieve expected synergies and the timing of same, the ability of the Company and Nanosphere to predict and adapt to changing customer requirements, preferences and spending patterns, the ability of the
Company and Nanosphere to protect their intellectual property, future capital expenditures, including the amount and nature thereof, trends and developments in the clinical diagnostic and life science industries, business strategy and outlook,
expansion and growth of business and operations, credit risks, anticipated acquisitions, future results for the Company being similar to historical results, expectations related to future general economic and market conditions and other matters. The
Companys and Nanosphere beliefs and assumptions are inherently subject to significant business, economic, competitive and other uncertainties and contingencies regarding future events and as such, are subject to change. The
Companys beliefs and assumptions may prove to be inaccurate and consequently the Companys actual results could differ materially from the expectations set out herein.
Actual results or events could differ materially from those contemplated in the forward-looking statements as a result of the following:
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(i)
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risks and uncertainties relating to the transaction, including (a) the risk that the businesses will not be integrated successfully or such integration may be more difficult, time-consuming or costly than expected,
which could result in additional demands on the Companys resources, systems, procedures and controls, disruption of its ongoing business and diversion of managements attention from other business concerns, (b) the possibility that
certain assumptions with respect to Nanosphere or the transaction could prove to be inaccurate, (c) failure or delay in respect of the satisfaction of the closing conditions to the transaction, (d) the potential failure to retain key
employees of the Company or Nanosphere as a result of the proposed transaction or during integration of the businesses and (e) disruptions resulting from the proposed transaction, making it more difficult to maintain business relationships;
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(ii)
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risks and uncertainties relating to the Company, including (a) the future performance, financial and otherwise, of the Company, (b) the ability of the Company to bring new products to market and to increase
sales, (c) the strength of the Companys product development pipeline, (d) the Companys growth and profitability prospects, (e) the estimated size and growth prospects of the clinical diagnostic and life science industries,
(f) the Companys competitive position in the clinical diagnostic and life science industries and its ability to take advantage of future opportunities in this market, (g) the benefits of the Companys products to be realized by
customers, and (h) the demand for the Companys products and the extent of deployment of the Companys products in the clinical diagnostic and life science industries; and
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(iii)
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risks and uncertainties relating to future events, conditions or circumstances, or other general risks, including
(a) integration of other acquisitions and related restructuring efforts, including the quantum of restructuring charges and the timing thereof, (b) the
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possibility that the Company may be unable to meet its future reporting requirements under the U.S. Securities Exchange Act of 1934, as amended, and the rules promulgated thereunder, (c) the
risks associated with bringing new products to market, (d) fluctuations in currency exchange rates, (e) delays in the purchasing decisions of the Companys customers, (f) the competition the Company faces in its industry and/or
marketplace, (g) the possibility of technical, logistical or planning issues in connection with the deployment of the Companys products or services, (h) the continuous commitment of the Companys customers, (i) demand for
the Companys products, and (j) the additional risks discussed under the heading Risk Factors in the Companys Reports on Forms 10-K and 10-Q, as filed with the Securities and Exchange Commission. The forward looking
statements contained herein represent the judgment of the Company as of the date of this press release, and unless otherwise required by applicable securities laws, the Company expressly disclaims any intent, obligation or undertaking to release
publicly any updates or revisions to any forward-looking statements to reflect any change in the Companys expectations with regard thereto or any change in events, conditions or circumstances on which any such statements are based.
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