Ontario Commission des 22^nd^ Floor 22e étage
Securities valeurs mobilières 20 Queen Street West 20, rue Queen ouest
Commission de l’Ontario Toronto ON M5H 3S8 Toronto ON M5H 3S8
September 7, 2021
In the Matter of the Securities Legislation of Ontario (the "Jurisdiction")
and
In the Matter of the Process for Cease to be a Reporting Issuer Applications
and
In the Matter of Luminex Corporation (the Filer)
Order
Background
The principal regulator in the Jurisdiction has received an application from the Filer for an order (the Order Sought) under the securities legislation of the Jurisdiction of the principal regulator (the Legislation) that the Filer has ceased to be a reporting issuer in all jurisdictions of Canada in which it is a reporting issuer (the Jurisdictions).
Under the Process for Cease to be a Reporting Issuer Applications (for a passport application):
(a) the Ontario Securities Commission is the principal regulator for this application; and
(b) the Filer has provided notice that subsection 4C.5(1) of Multilateral Instrument 11-102 Passport System (MI 11-102) is intended to be relied upon in British Columbia, Alberta, Saskatchewan, Manitoba and Quebec.
Interpretation
Terms defined in National Instrument 14-101 - Definitions and MI 11-102 have the same meaning if used in this order, unless otherwise defined.
Representations
This order is based on the following facts represented by the Filer:
The Filer was incorporated under the laws of the State of Texas in May 1995 and reincorporated in the State of Delaware on June 19, 1998. The head office of the Filer is located at 12212 Technology Blvd., Austin, Texas, 78727. The Filer is a Delaware corporation
The Filer is a "reporting issuer" for the purposes of securities legislation in the Jurisdictions.
On March 1, 2007, the TM Bioscience Corporation (“TBC”), a then reporting issuer, completed a plan of arrangement (the "Plan of Arrangement") whereby the Filer acquired all of the outstanding common shares of TBC. The Plan of Arrangement also effected the exchange of all outstanding options and warrants to acquire common shares of TBC into options and warrants to acquire shares of the Filer. In accordance with the Plan of Arrangement and related transactions, the Filer became a "reporting issuer" for the purposes of securities legislation in the Jurisdictions.
Prior to the completion of the Acquisition (as defined below), the Filer’s common shares were listed for trading on the NASDAQ Market LLC (the "NASDAQ") under the symbol "LMNX" and the Filer was subject to the reporting obligations of the Securities and Exchange Commission of the United States ("SEC"). None of the Filer's securities, including debt securities, were listed, quoted or traded on a marketplace or exchange in Canada and there was no market for the Filer's securities in Canada.
On April 11, 2021, the Filer entered into an agreement and plan of merger with DiaSorin S.p.A. (“DiaSorin”), a società per azioni organized under the laws of the Republic of Italy, and Diagonal Subsidiary Inc. (“Merger Subsidiary”), a Delaware corporation and wholly owned indirect subsidiary of DiaSorin, pursuant to which DiaSorin acquired the Filer by way of a merger (the “Merger”) of the Merger Subsidiary with and into the Filer in an all-cash deal valued at approximately US$1.8 billion (the “Acquisition”).
The Acquisition was completed on July 14, 2021, at which time the Filer, as the surviving corporation of the Merger, (i) became a wholly owned indirect subsidiary of DiaSorin and (ii) ceased to be a publicly traded company. The former securityholders of the Filer ceased to hold any shares of capital stock or other securities of the Filer, and did not receive any shares of capital stock or other securities of DiaSorin in connection with the Acquisition.
In connection with the completion of the Acquisition, the Filer’s securities were delisted from NASDAQ on July 24, 2021. On July 26, 2021 the Filer filed a Certification and Notice of Termination of Registration under Section 12(g) of the Securities Exchange Act of 1934 (as amended) (the “Exchange Act”) with the SEC at which time the Filer’s reporting obligations were immediately suspended under Section 13(a) of the Exchange Act, and the Filer’s securities will be fully deregistered under the Exchange Act on October 25, 2021.
The Filer is not an OTC reporting issuer under Multilateral Instrument 51-105 - Issuers Quoted in the U.S. Over-the-Counter Markets.
The Filer does have not have any securities outstanding other than the common stock held by DiaSorin. The outstanding securities of the Filer, including debt securities, are beneficially owned, directly or indirectly, by fewer than 15 securityholders in each of the jurisdictions of Canada and fewer than 51 securityholders in total worldwide.
The Filer’s outstanding securities, including debt securities, are not traded in Canada, the United States or another country on a marketplace as defined in National Instrument 21-101 Marketplace Operation or any other facility for bringing together buyers and sellers of securities where trading data is publicly reported.
The Filer is applying for an order that the Filer has ceased to be a reporting issuer in all of the jurisdictions in Canada in which it is a reporting issuer.
The Filer is not in default of any of the requirements of securities legislation in the Jurisdictions, the requirements of the SEC or the NASDAQ, or any other securities or corporate legislation to which it is subject, except as described in (12)(i) and (12)(ii) below (the “Defaults”):
i. the failure to file its proxy statements/management information circulars, as amended, and related shareholder meeting materials on the Filer’s SEDAR profile at www.sedar.com in respect of the meetings held on each of May 21, 2009, May 19, 2011, May 17, 2012, May 16, 2013, May 15, 2014, May 14, 2015, May 19, 2016, May 18, 2017, May 17, 2018, May 16, 2019, May 21, 2020, May 20, 2021 and June 21, 2021 (collectively, the “Proxy Materials”) and the results thereof; and
ii. the failure to file any material change reports or, alternatively, current reports filed with or furnished to the SEC in satisfaction of such requirement pursuant to section 4.2 of National Instrument 71-102 - Continuous Disclosure and Other Exemptions Relating to Foreign Issuers.
All Proxy Materials of the Filer and other materials required to be filed by the Filer under U.S. securities laws, including those not filed on SEDAR in respect of the Defaults, are available on the Filer's EDGAR profile under the filings section of the SEC website (www.sec.gov).
The Filer is not eligible to use the simplified procedure set out in National Policy 11-206 - Process for Cease to be a Reporting Issuer Applications because of the Defaults.
The Filer, upon granting of the Order Sought, will no longer be a reporting issuer in any of the Jurisdictions.
Order
The principal regulator is satisfied that the order meets the test set out in the Legislation for the principal regulator to make the order.
The decision of the principal regulator under the Legislation is that the Order Sought is granted.
“Lawrence Haber” “Craig Hayman”
Commissioner Commissioner
Ontario Securities Commission Ontario Securities Commission