exv10w3





Exhibit 10.3



 
CONFIDENTIAL PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION UNDER A
CONFIDENTIAL TREATMENT REQUEST, PURSUANT TO RULE 406 OF THE
SECURITIES ACT OF 1933, AS AMENDED, AND RULE 24b-2 OF THE SECURITIES
EXCHANGE ACT OF 1934, AS AMENDED. THE REDACTED TERMS HAVE BEEN MARKED
IN THIS EXHIBIT AT THE APPROPRIATE PLACE WITH THREE ASTERISKS [***].




AMENDMENT NO. 2 TO DEVELOPMENT AND SUPPLY AGREEMENT




          This Amendment No. 2 to Development and Supply Agreement (“Second Amendment”),
effective as of January 1, 2008, between Luminex Corporation, a Delaware corporation
with principal offices at 12212 Technology Boulevard, Austin, Texas 78727 (“Luminex”),
and Rules-Based Medicine, Inc. f/k/a RBM Acquisition, Inc., a Delaware corporation
headquartered in Austin, Texas (“RBM”).




RECITALS




          A. Whereas, Luminex and RBM entered into a Development and Supply Agreement,
effective as of September 5, 2002, to permit RBM to develop and distribute Developed
Products for use with Luminex Instruments and Beads within the Territory (as amended,
the “Agreement”);




          B. Whereas, Luminex and RBM entered into an Amendment No. 1 to Development and
Supply Agreement on October 12, 2007 (“First Amendment”); and




          C. Whereas, the parties desire to make certain modifications to implement certain
modifications under this Second Amendment;




          NOW THEREFORE, in consideration of the mutual obligations in this Second Amendment
and for other good consideration, the receipt and sufficiency of which are
acknowledged, the parties to this Second Amendment agree as follows:




AGREEMENT



I. Changes to the Agreement. For purposes of this Second Amendment, the following are
changes to the Agreement:




          A. The term “Luminex Instrument” shall replace the term “Luminex 100 System” in
all instances throughout the Agreement.




          B. Section 1.1 to the Agreement shall be deleted in its entirety and replaced
with a new Section 1.1 as follows:




          Section 1.1 “Affiliate” means any entity that directly or indirectly owns,
is owned by or is under common ownership with a party hereto, where “owns” or
“ownership” means direct or indirect possession and/or control of at least fifty
percent (50%) of the outstanding voting securities of a corporation or a comparable
equity interest in any other type of entity and as specifically agreed to by the
Parties.




          C. Section 1.4 to the Agreement shall be deleted in its entirety and replaced
with a new Section 1.4 as follows:




			
	 	 	 
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          Section 1.4 “Beads” means Luminex’s fluorescently-dyed microsphere beads
supplied by Luminex for use with Luminex Instruments and made available by Luminex
generally to customers for use in Tests as specifically set forth in Exhibit
D.




          D. Section 1.18 to the Agreement shall be deleted in its entirety and replaced
with a new Section 1.18 as follows:




          Section 1.18 “Luminex Instrument” means a laser-based fluorescent analytical
test system consisting of Luminex’s instrumentation and the Software with
computer components, as specifically identified in Exhibit B of this
Agreement.




          E. Section 1.43 shall hereby be added to the Agreement as follows:




          Section 1.43 “Luminex Product” means Beads and Luminex
Instruments.




          F. Section 1.44 shall hereby be added to the Agreement as
follows:




          Section 1.44 “Party” means Luminex or RBM.




          G. Section 1.45 shall hereby be added to the Agreement as follows:




          Section 1.45 “Commercialize” means the generation of Net Sales resulting in
an obligation to pay royalties to Luminex pursuant to this Agreement.




          H. Section 1.46 shall hereby be added to the Agreement as follows:




          Section 1.46 “Calendar Year” means each twelve-month (12-month) period during the
term of the Agreement beginning January 1 and ending December 31.




          I. Section 2 of the First Amendment shall be deleted in its entirety and replaced
with a new Section 2.12 to the Agreement as follows:




          Section 2.12 “Amendment of Elected Fields and Available Fields.” Exhibit G
and Exhibit H to the Agreement are amended in their entirety by substituting
the forms of Exhibit G attached to the First Amendment and Exhibit H attached
to this Second Amendment, so that the Fields listed on Exhibit H attached to
this Amendment shall constitute “Elected Fields” under the Agreement. Section 4.7(e) of
the Agreement shall not apply to any Elected Fields resulting from the First Amendment
or the Second Amendment. Further, Section 2.5 of the Agreement shall apply to any
Elected Fields resulting from the First Amendment provided, however, that with respect
to such additional Elected Fields, the phrase “thirty (30) months after October 12, 2007”
shall be substituted for the phrase “eighteen (18) months after the Closing Date” as
used in such Section 2.5. Notwithstanding the foregoing, the Elected Fields and
Available Fields under the First Amendment or the Second Amendment shall in no event
include Testing for microRNA (miRNA) as defined below, or testing for any of the
following disease conditions or applications. However, the following exclusions shall in
no way limit or infringe upon RBM’s right to




			
	 	 	 
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	 	Page 2






 









 





commercialize Developed Products in the Field of Research Immunoassays and Assays of
Enzymes:





	 	o	 	Neonatal Testing: For avoidance of doubt, Neonatal Testing means the field of
Neonatal and Prenatal InVitro Diagnostic testing, including but not limited
to, DNA, circulating fetal RNA, protein/peptide and/or small biologically
active molecules (such as hormones) where the test results are used for the
clinical diagnosis, prognosis or evaluation of a therapeutic approach or
product and for the quantitative or qualitative measurement of clinical
specimens, including organs, tissues, fluids and compartments associated with
fetal development, diagnosis, staging, predisposition, prognosis and/or
monitoring of disease and development in a human fetus and through the first
six (6) months following birth (“Neonatal Testing”);
	 
	 	o	 	Point of Care Testing: For avoidance of doubt, Point of Care Testing means
the delivery of clinical diagnostic testing services or products at the
closest point to the patient, offered either as an outpatient service or
emergency room or physician’s office or public health laboratory setting.
Point of Care testing is the delivery of distributed primary care testing or
testing products to the patient and is not associated with testing in the
centralized laboratory in most typical hospital medical centers or centralized
clinical reference laboratories (“Point of Care Testing”);
	 
	 	o	 	InVitro Diagnostic Cystic Fibrosis Testing;
	 
	 	o	 	InVitro Diagnostic Jewish Heritage Related Genetic Conditions Testing;
	 
	 	o	 	InVitro Diagnostic Coagulation Related Genetic Disorders Testing;
	 
	 	o	 	Bio-Threat Agent Testing: For avoidance of doubt, Bio-Threat Agent Testing
includes, but is not limited to, testing and screening for pathogens and/or
toxins that may potentially be used as a bio-threat or in bio-terrorism
activities (“Bio-Threat Agent Testing”);
	 
	 	o	 	Human HLA, Tissue Typing and Histo-Compatability Testing for Transplantation
Testing: For avoidance of doubt, human Leukocyte antigen (HLA) testing, which
includes without limitation the Field of human histo-compatability testing is
the detection and measurement of HLA (human Leukocyte antigen) cellular
antigens, serum based antibodies to HLA antigens, soluble HLA antigens and
nucleic acids related to such antigens (“HLA Testing”);
	 
	 	o	 	InVitro Diagnostic Human Papillomavirus (HPV) Infectious Agent Testing;
	 
	 	o	 	Commercial Blood Transfusion Product Testing: For avoidance of doubt, Commercial
Blood Transfusion Product Testing means blood screening for infectious agents
related to blood processing for therapeutic transfusion or industrial purposes
(“Commercial Blood Transfusion Testing”);





			
	 	 	 
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	 	o	 	MicroRNA Testing: For avoidance of doubt, Testing for microRNA (miRNA) refers
to a class of small non-coding ribonucleic acid (RNA) species that are
involved in gene expression regulation (“Testing for microRNA”);
	 
	 	o	 	Veterinarian, Companion Animal and Production Animal Testing: For avoidance of
doubt, RBM shall be entitled to continue its testing with respect to animal
samples submitted to RBM for research only testing services and kits that
are produced by RBM for laboratory research animals, including, but not
limited to, rodents, primates and canines, for clinical or medical based
research; and
	 
	 	o	 	Crop Protection and Crop Safety Testing and Food Production and Food Safety
Testing: For avoidance of doubt, RBM shall be entitled to market research-use
Developed Products for crop safety and food safety testing in all sample
types of human and animal subjects, provided the crop or food product is
not for resale.





          J. Section 2.13 shall hereby be added to the Agreement as follows:




          Section 2.13 “Commercialization within the Field of Alzheimer’s Disease and
Alzheimer’s Related Diseases Testing.” As to Developed Products in the Field of
Alzheimer’s Disease and Alzheimer’s Related Diseases Testing, RBM shall (i) obtain all
regulatory approvals required, if any, for the use, sales, marketing and distribution
of the Developed Products for use within the Field of Alzheimer’s Disease and
Alzheimer’s Related Diseases Testing set forth on Exhibit H, and (ii) have
sold any number of such Developed Products for use within the Field of Alzheimer’s
Disease and Alzheimer’s Related Diseases Testing set forth on Exhibit H for
which a royalty is owed pursuant to Section 4.7 in the Territory, in each of (i)
and (ii) within twenty-seven (27) months after the effective date of this Second
Amendment. Failure to meet both of the preceding conditions may result in termination
of certain rights of RBM hereunder under Section 8.4.




          K. Section 2.14 shall hereby be added to the Agreement as follows:




          Section 2.14 “Commercialization within the Field of Alzheimer’s Disease and
Alzheimer’s Related Diseases Testing within the Territory.” As to Developed Products
in the Field of Alzheimer’s Disease and Alzheimer’s Related Diseases Testing, RBM
shall (i) obtain all regulatory approvals required, if any, for the use, sales,
marketing and distribution of the Developed Products for use within the in the Field
of Alzheimer’s Disease and Alzheimer’s Related Diseases Testing in the Territory, and
(ii) have sold any number of such Developed Products for which a royalty is owed
pursuant to Section 4.7 in each country in the Territory, in each of (i) and (ii)
within thirty-nine (39) months after the effective date of this Second Amendment.
Failure to meet both of the preceding conditions may result in termination of certain
rights of RBM hereunder under Section 8.5.




          L. Section 3.4 to the Agreement shall be deleted in its entirety and replaced
with a new Section 3.4 as follows:



          Section 3.4 “End User Restrictions.” RBM shall include a copy of the applicable
End User Licenses and Software license agreements, labels and terms and conditions, a
copy of




			
	 	 	 
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which, current as of the Effective Date, is attached hereto as Exhibit A
(collectively, the “End User Licenses and Terms and Conditions”) with each
Assay Product, as applicable, shipped to a customer or End User by or for RBM. For
avoidance of doubt, LUMINEX shall include a copy of the End User Licenses and Terms
and Conditions with each Luminex Instrument shipped to RBM and/or an End User and
RBM shall not remove such End User License Terms and Conditions. LUMINEX shall have
the right to change such End User Licenses and Terms and Conditions on thirty (30)
days advance written notice to RBM, provided, however, LUMINEX agrees that it will
not materially change the End User Licenses and Terms and Conditions (for purposes of
this Agreement) without RBM’s prior written consent, which shall not be unreasonably
withheld. After such thirty (30) day period, RBM shall be obligated to use the
updated End User License and Terms and Conditions in Luminex Instruments and the
newly manufactured batches of Developed Products and RBM shall use commercially
reasonable efforts to (i) make customers and End Users aware of the End User
Licenses and Terms and Conditions prior to the consummation of any sale, and (ii)
effect and document sales of Developed Products and Luminex Instruments in such a
manner as to legally bind such customers and End Users to the End User Licenses and
Terms and Conditions.




          M. Section 4.7 (b), (c) and (f) to the Agreement shall be deleted in its
entirety and replaced with a new Section 4.7(b), (c) and (f) as follows:




          Section 4.7(b) “Testing Services Royalties.” RBM shall pay to LUMINEX [***] of Net
Sales of the Testing Services (the “Base Testing Services Royalty Amount”).
Notwithstanding the foregoing, RBM shall pay to LUMINEX [***] on the Net Sales of the
Testing Services in the Field of Alzheimer’s Disease and Alzheimer’s Related Diseases
Testing in lieu of the royalty described in the preceding sentence.




          With respect to Biophysical Testing Services for a Biophysical Full Panel Test,
the Testing Services Royalties shall be the greater of:





	 	(i)	[***] 	of RBM’s Net Sales of the Biophysical Testing Services performed
on the Luminex platform; or
	 
	 	(ii) 	[***] 	





          With respect to Biophysical Testing Services for a subpart of a Biophysical Full
Panel Test, the Testing Services Royalties shall be the greater of:





	 	(i)	 	[***] of RBM’s Net Sales of the Biophysical Testing Services performed
on the Luminex platform; or
	 
	 	(ii)	 	the result derived by multiplying [***] by a fraction, the numerator
of which is the number of analytes on the Luminex platform used by RBM
in such subpart and the denominator of which is the number of analytes
on the Luminex platform used by RBM in a Biophysical Full Panel Test.





          Section 4.7(c) “Developed Kit Royalties.” RBM shall pay to LUMINEX [***] of Net
Sales of the Developed Kits (the “Base Developed Kit Royalty Amount”).




			
	 	 	 
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Notwithstanding
the foregoing, RBM shall pay to LUMINEX [***] on the Net Sales of
Developed Kits in the Field of Alzheimer’s Disease and Alzheimer’s Related Diseases
Testing in lieu of the royalty described in the preceding sentence.




          Section 4.7(f) “Luminex Product Pricing.” RBM shall pay Luminex the amount
set forth in Exhibit B hereto for each Luminex Instrument
(“System Purchase
Price”) purchased by RBM. Luminex may increase the System Purchase Price in its
discretion upon thirty (30) days written notice to RBM, provided that such increases
may occur no more frequently than once per year. Any such increase in the System
Purchase Price shall be effective for all Luminex Instruments ordered after such
written notice is provided. Notwithstanding the foregoing, Luminex may increase the
System Purchase Price at any time to the extent of an increase in component pricing
or costs associated with manufacture or production. Any such change in the System
Purchase Pricing shall be effective for all Luminex Instruments ordered after notice
is provided by Luminex.




          N. Section 4.10 shall be deleted in its entirety and replaced with a new Section
4.10 as follows:




          Section 4.10 “Reporting and Payment.” Payment of the Bead Prices and the
System Purchase Price shall be made within thirty (30) days of RBM’s receipt of an
invoice therefor. Within ten (10) days of the end of a given calendar quarter, RBM
shall submit to LUMINEX a written report estimating the amount of Testing Services
Royalties and Developed Kit Royalties payable to LUMINEX for the prior calendar
quarter. Forty-five (45) days from the date of such report, RBM shall pay LUMINEX the
full amount of Testing Services Royalties (or Base Testing Services Royalties, if
applicable) and Base Developed Kit Royalties due for the prior calendar quarter and
include a full report setting forth the amount of royalties payable to LUMINEX for
such calendar quarter and all supporting data and calculations used by RBM to compute
such royalties (“Royalty Report”). Beginning nine (9) months after the effective date
of this Second Amendment, the supporting data and calculations that RBM shall be
obligated to provide to Luminex shall include the quantity of each type of Kit and
Testing Service sold within each country within the Territory and as specifically set
forth in Exhibit J. All payments hereunder shall be made in U.S. Dollars in
the United States by: (1) direct bank transfer to an account designated in LUMINEX’s
invoice, (ii) check, or (iii) other form of payment acceptable to and approved in
advance by LUMINEX. In the event that RBM is unable to make such payments in the
United States, due solely to its inability to export funds from a country of the
Territory, RBM shall notify LUMINEX immediately, and if so instructed by LUMINEX,
deposit all monies due LUMINEX in an account of LUMINEX in a local bank of
LUMINEX’s choice within the Territory. Any late payments shall bear interest at the
rate of one percent (1.0%) per month or the highest rate permitted under applicable
law, whichever is less, based on the number of days overdue.




          O. Section 4.16 shall hereby be added to the Agreement as follows:




          Section 4.16 “Luminex Product Life Cycle Management.” In the event that
Luminex decides to discontinue production of any Luminex Product, as set forth in
Exhibit B and Exhibit D, Luminex shall provide RBM six (6) months prior
written notice of the affected Luminex




			
	 	 	 
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Product’s end of sale date and/or the last day the affected Luminex Instrument can
be ordered. Luminex shall continue to provide service support for the discontinued
Luminex Instrument for a period of five (5) years from the end of sale date,
depending on the availability of spare parts. Furthermore, access to Luminex’s
technical support assistance will be available for a period of five (5) years from
the effective date of discontinuance for the Luminex Instrument.




          P. Section 4.17 shall hereby be added to the Agreement as follows:




          Section 4.17 “License Fee for the Field of Alzheimer’s Disease and Alzheimer’s
Related Diseases Testing.” RBM agrees to pay Luminex for the Field of Alzheimer’s
Disease and Alzheimer’s Related Diseases Testing a one-time,
non-refundable license fee of [***] (“Field of Alzheimer’s Disease License Fee Payment”). Such Field of Alzheimer’s
Disease License Fee Payment shall be due, at RBM’s election, on or before ten (10)
calendar days following March 31, 2008. Such Field of Alzheimer’s Disease License Fee
Payment hereunder shall be payable in U.S. Dollars (U.S.$) without deductions for
taxes, fees or charges of any kind. In the event RBM fails to pay the Field of
Alzheimer’s Disease License Fee Payment set forth above, all modifications to the
Agreement and the First Amendment contained in this Second Amendment shall terminate
and have no further force or effect and the relationship of the Parties shall be
governed entirely by the terms and conditions of the original Agreement, as amended
by the First Amendment.




          Q. Section 6.2 shall be deleted in its entirety and replaced with a new
Section 6.2 as follows:




          Section 6.2
“Training”. At RBM’s request, Luminex will provide either (i) the then
current instructor led introductory training course in use of the Luminex Instrument to
End User purchasers of the Luminex Instrument, including lunch and study materials, at
Luminex’s facilities in Austin, Texas or in Oosterhout, The Netherlands, as selected
by RBM and as available by Luminex (ii) comparative internet-based introductory training
courses in the use of the Luminex Instrument. Such training shall only be provided
by Luminex within three (3) months of installation of each Luminex Instrument at RBM.
RBM shall be solely responsible for all lodging and travel expenses of its employees.
For each Luminex Instrument purchased, such training course will be provided free of
charge to one individual. The cost for each additional person attending the training
will be Luminex’s standard charge for such training at such time the training is
delivered. Additional training courses may be offered by Luminex to RBM under mutually
agreed upon terms and conditions by the Parties.




          R. Section 8.4 shall be deleted in its entirety and replaced with a new
Section 8.4 as follows:




          Section 8.4 “Termination for Failure to Commercialize within an Elected
Field.” If RBM fails to meet all the terms and conditions of Section 2.5 and
Section 2.13 regarding Commercialization in each Field, then LUMINEX, at its sole
discretion, may terminate the Agreement, but only with respect to the particular
Elected Field as to which RBM failed to meet the Section 2.5 or Section 2.13
conditions, as applicable; and subject to six (6) months prior written notice by
LUMINEX to RBM of its intent to terminate, and RBM’s failure to comply




			
	 	 	 
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with Section 2.5 or 2.13, as applicable, within such six (6) month period.




          S. Section 8.5 shall be deleted in its entirety and replaced with a new Section
8.5 as follows:




          Section 8.5 “Termination for Failure to Commercialize within the Territory.”
If RBM fails to meet all the terms and conditions of Section 2.6 and Section 2.14
regarding Commercialization in an individual country or countries within the Territory,
then LUMINEX, at its sole discretion, may terminate this Agreement, but only with
respect to the particular Elected Field in the particular country or countries in
which RBM failed to meet the Section 2.6 or Section 2.14 conditions, as applicable;
and subject to six (6) months prior written notice by LUMINEX to RBM of its intent
to terminate, and RBM’s failure to comply with Section 2.6 or Section 2.15, as
applicable, within such six (6) month period.




          T. Section 9.1 shall be deleted in its entirety and replaced with a new Section
9.1 as follows:




          Section 9.1
“Trademarks”. Subject to the provisions of this Article 9, during the
term of this Agreement, RBM shall have the right to advertise the Beads and Luminex
Instrument under the trademarks, marks, and trade names of Luminex set forth in
Exhibit C, as same may be amended in writing by Luminex from time to time
(“Luminex’s Trademarks”). RBM shall not modify Luminex’s branding of Luminex Instruments.
RBM shall fully comply with the restrictions set forth below and Luminex’s Trademark
Usage Guidelines attached hereto as Exhibit I concerning the use of Luminex’s
Trademarks (“Trademark Usage Guidelines”). Luminex shall have the right to change such
Trademark Usage Guidelines on thirty (30) days advance written notice to RBM. After
such thirty (30) day period, RBM shall be obligated to use the updated Trademark Usage
Guidelines in Luminex Instruments and the newly manufactured batches of Kits and
Testing Services. All representations of Luminex’s Trademarks that RBM intends to use
shall first be submitted to Luminex for confirmation that such use would comply with
Luminex’s trademark usage guidelines (which confirmation shall be deemed given if
Luminex does not respond within twenty (20) Business Days of such submission) of
design, color and other details, or shall be exact copies of those used by Luminex.
Luminex may modify any Luminex Trademarks, or substitute an alternative mark for any
Luminex Trademark, upon thirty (30) days prior notice to RBM.




          U. Exhibit B to the Agreement shall be deleted in its entirety and
replaced with a new Exhibit B, attached hereto.




          V. Exhibit C to the Agreement shall be deleted in its entirety and
replaced with a new Exhibit C, attached hereto.




          W. Exhibit D to the Agreement shall be deleted in its entirety and
replaced with a new Exhibit D, attached hereto.




          X. Exhibit H to the Agreement shall be deleted in its entirety and
replaced with a new Exhibit H, attached hereto.




			
	 	 	 
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          Y.
Exhibit J to the Agreement shall be deleted in its entirety and
replaced with a new Exhibit J, attached hereto.



This Second Amendment hereby amends the Agreement to incorporate the terms and
conditions set forth in this Second Amendment. The relationship of the Parties shall
continue to be governed by the terms and conditions of the Agreement, as amended by
the First Amendment and this Second Amendment. In the event of a conflict between
the terms and conditions of the Agreement, the First Amendment and this Second
Amendment, the terms and conditions of this Second Amendment shall control.



All capitalized terms shall have the meanings defined for such terms in this Second
Amendment or, if not defined in the Second Amendment, the meanings defined in the
Agreement.




			
	 	 	 
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          IN WITNESS WHEREOF, the Parties have executed this Second Amendment to be
effective as of the date first above given.




	 	 	 	 	 	 	 	 	 	 	 
	LUMINEX CORPORATION:	 	 	 	RULES-BASED MEDICINE, INC.:	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	By:

	 	/s/ Russell Bradley
 

	 	 
	 	By:
	 	/s/ T. Craig Benson
 

	 	 
	 
	Name:

	 	Russell Bradley
	 	 	 	Name:
	 	T. Craig Benson	 	 
	 
	Title:

	 	V.P. Business Development
	 	 	 	Title:
	 	President & CEO	 	 






			
	 	 	 
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EXHIBIT B




LUMINEX INSTRUMENT PRICING



LX200-IS
2.3WB — RBM — Luminex 200 (Calendar Year Volume Discount)




	 	 	 
	Quantity of Instruments*	 	 
	Purchased by RBM and	 	Price (US$)
	its
Affiliates	 	w/Luminex IS 2.3 Software
	1-25	 	[***]
	26-50	 	[***]
	51-75	 	[***]
	76-100	 	[***]
	101 or greater	 	[***]





LX200-xPONENT-RBM — Luminex 200 (Calendar Year Volume Discount)




	 	 	 
	Quantity of Instruments*	 	 
	Purchased by RBM and	 	Price (US$)
	its
Affiliates	 	w/Luminex xPONENT Software
	1-25	 	[***]
	26-50	 	[***]
	51-75	 	[***]
	76-100	 	[***]
	101 or greater	 	[***]





Note: If the combined total of IS 2.3 and xPONENT Luminex Instrument purchases reach seventy-six
(76) or greater for Calendar Year 2007, pricing will be [***] for each Luminex 200 IS 2.3 WB Instrument
and [***] each Luminex 200 xPONENT-RBM Instrument, respectively. For avoidance of doubt, purchases by
RBM of Luminex Instruments in a Calendar Year may not be credited towards the Luminex Instrument
purchases for the following Calendar Year. For avoidance of doubt, Luminex Instruments purchased
by RBM and credited towards price discounts in the tables above, shall not include refurbished
and/or used Luminex Instruments.



By way of example, if RBM submits an annual forecast for a Calendar Year for the purchase of
twenty-six (26) Luminex Instruments (LX200-IS2.3WB-RBM), RBM
shall pay [***] for each of the twenty-six
(26) systems forecasted and purchased within that Calendar Year. If on December 31st of
that Calendar Year, RBM has only purchased twenty (20) Luminex Instruments during that Calendar
Year, RBM shall be obligated to pay Luminex the difference in price
of [***] (the price
allocated to a volume purchase of one to twenty-five
(25) systems during such Calendar Year) less [***] (the price allocated to a volume purchase of up to fifty (50) Luminex Instruments but no
less than twenty-six (26) Luminex Instruments during such Calendar Year) multiplied by the twenty
(20) Luminex Instruments (the quantity of Luminex Instruments purchased during such Calendar
Year). For avoidance of doubt, the amount that RBM would have to pay Luminex on December
31st of
such Calendar Year would
be [***]. For avoidance of doubt, if RBM under forecasts the
quantity of Luminex Instruments in any Calendar Year, Luminex shall not be obligated to credit any
amount to RBM during such Calendar Year.






			
	 	 	 
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The volume discount table above applies to Luminex Instruments ordered by RBM and its Affiliates in
the 2007 Calendar Year and shall not include refurbished and/or used Luminex Instruments. In
addition, the above pricing shall apply to all Luminex Instruments purchased by RBM and its
Affiliates that include Luminex supplied software and are ordered, with such requested shipment
date prior to end of the Quarter of such order, for End Users by RBM in Calendar Year 2007. For
avoidance of doubt, for each Luminex Instrument, which is purchased
by and subsequently shipped to
an End User by RBM and its Affiliates, RBM and its Affiliates shall provide to Luminex End User
information, which shall include, but not be limited to the End User’s legal name and address, and
the related contact information of such user and the date of shipment. Luminex shall consider this
information “confidential” subject to the terms and conditions of this Agreement. For avoidance of
doubt, RBM shall be required to submit to Luminex during the term of this Agreement and thirty (30)
days prior to the beginning of each Calendar Year, an annual forecast of RBM and its Affiliates’
requirements of Luminex Instruments for such Calendar Year. If orders for Luminex Instruments
submitted by RBM and its Affiliates for a specific Calendar Year are greater than twenty percent
(20%) above the quantity of Luminex Instruments forecasted by RBM for the same Calendar Year, then
Luminex shall use reasonable commercial efforts to fulfill the greater than twenty percent (20%)
non-forecasted orders in its reasonable discretion.




			
	 	 	 
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EXHIBIT C




TRADEMARKS




Luminex®




Lumavidin®




xMAP®




Luminex® 200TM




Luminex® XYPTM




Luminex® SDTM




Luminex®
FlexMAPTM





FlexmiRTM




MicroPlexTM




MagPlexTM





			
	 	 	 
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EXHIBIT D




BEAD PRICES




CARBOXYLATED BEADS




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Concentration	 	Volume	 	 	 	 
	 	 	(Beads per mL)	 	(mL)	 	Total Beads	 	Price ($)
	 
	 	 	12,500,000	 	 	 	1	 	 	 	12,500,000	 	 	 	[***]	 
	 
	 	 	12,500,000	 	 	 	4	 	 	 	50,000,000	 	 	 	[***]	 
	 
	 	 	12,500,000	 	 	 	16	 	 	 	200,000,000	 	 	 	[***]	 






LUMAVIDIN BEADS




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Concentration	 	Volume	 	 	 	 
	 	 	(Beads per mL)	 	(mL)	 	Total Beads	 	Price ($)
	 
	 	 	2,500,000	 	 	 	1	 	 	 	2,500,000	 	 	 	[***]	 






CALIBRATION BEADS




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Concentration	 	Volume	 	 	 	 
	 	 	(Beads per mL)	 	(mL)	 	Total Beads	 	Price ($)
	 
	 	 	400,000	 	 	 	5	 	 	 	2,000,000	 	 	 	[***]	 






CONTROL BEADS 1




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Concentration	 	Volume	 	 	 	 
	 	 	(Beads per mL)	 	(mL)	 	Total Beads	 	Price ($)
	 
	 	 	500,000	 	 	 	5	 	 	 	2,500,000	 	 	 	[***]	 






CONTROL BEADS 2




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Concentration	 	Volume	 	 	 	 
	 	 	(Beads per mL)	 	(mL)	 	Total Beads	 	Price($)
	 
	 	 	400,000	 	 	 	5	 	 	 	2,000,000	 	 	 	[***]	 






			
	 	 	 
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EXHIBIT H




ELECTED FIELDS




The Field of Research Immunoassays and Assays of Enzymes




Research Immunoassays means the detection and/or quantitation of a substance and or organism/toxin
using an antibody whether in a direct or competitive assay or an antigen to detect an antibody
solely for Research Use. Assays of Enzymes means the detection of enzymes as opposed to the use of
enzymes as part of another analytical method, e.g., ELISA solely for Research Use. For avoidance
of doubt, this field shall encompass the entire Research Products Field other than Research
Nucleic Acids.



DIAGNOSTIC FIELDS




The Field of Alzheimer’s Disease and Alzheimer’s Related Diseases Testing:



For avoidance of doubt, Alzheimer’s Disease and Alzheimer’s Related Diseases means any InVitro
Diagnostic testing for the presence of, or predisposition to, progressive neurodegenerative
diseases such as Alzheimer’s Disease in human patient samples. This includes without limitation
the disease detection or screening for disease presence, patient disease predisposition, selection
of therapy or therapeutic approach and the monitoring of therapeutic efficacy in progressive
neurodegenerative diseases such as but not limited to, Alzheimer’s Disease (“Alzheimer’s Disease
and Alzheimer’s Related Diseases Testing”).



The Field of Allergy Testing




The Field of Allergy Testing means the detection of allergens (known substances which cause
allergic reactions), antibodies thereto (all classes) and markers associated with the allergic
process.



Examples of analytes in this Field are: total and allergen specific immunoglobulin (IgE) and other
immunoglobulin (IgG, IgA) mites, foods, ragweed, pollen and other substances, e.g., histamine,
directly related to the allergic response.



The Field of Autoimmune Disease Testing




The Field of Autoimmune Disease Testing means the detection and measurement of antigens (soluble
or cellular) and serum antibodies thereto which are related to auto immune diseases such as lupus
erythematosus, rheumatoid arthritis, Sjogrens disease, Scleroderma, Diabetes, and various
neurological disorders, etc.



Examples of analytes in this Field are: anti-nuclear antibodies, anti-DNA antibodies, smooth





			
	 	 	 
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muscle antibody, anti-cardiolipin antibodies, anti-mitochondrial antibodies,
anti-neutrophil Cytoplasmic Antibodies (ANCA), rheumatoid factor, anti-myelin



The Field of Bacteriological Immunoassays




The Field of Bacteriological Immunoassays means the detection of bacteria, toxins related thereto
and antibodies thereof.



Examples of analytes in this Field are: salmonella, campylobacter, H. Pylori, staphylococcus,
streptococcus, tuberculosis, E. coli and related toxins, syphilis, gonorrhea



The Field of Cancer Marker Immunoassay Testing Services




The Field of Cancer Marker Immunoassay Testing Services means Testing Services for those markers,
antibodies thereto which are diagnostic for and/or used to detect and monitor cancers of all
types, solid and lymphatic.



Examples of analytes in this Field are: PSA, CEA, PAP, AFP, CA 19-9, CA 15-3, CA 125, calcitonin




The Field of Cardiac Event Marker Testing




The Field of Cardiac Event Marker Testing means the detection of markers associated with a heart
attack, stable and unstable angina, congestive heart disease, ventricular dysfunction and related
cardiac conditions.



Examples of analytes in this Field are: CKMB, Troponin I, Troponin T, myoglobin. The
Field of Coronary Artery Disease Marker Testing



The Field of Coronary Artery Disease Marker Testing means the detection of markers which are
indications of coronary artery disease including hypertension and risk of cardiac events.



Examples of analytes in this Field are: fibrinogen, homocystine, apolipoproteins, lipoproteins
including genetic markers of the diseases, aldosterone, renin, catecholamine, ferritin,
B12/Folate.



The Field of Cytokine/Chemokine Immunoassay Testing




The Field of Cytokine/Chemokine Immunoassay Testing means the detection of intercellular
messengers, their receptors and antibodies thereto, specifically excluding endocrine hormones.



Examples of analytes in this Field are: interleukins, growth factors, apoptotic and signal
transduction markers.



 
			
	 	 	 
	AMENDMENT NO. 2 TO DEVELOPMENT AND SUPPLY AGREEMENT - CONFIDENTIAL
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The Field of Drugs of Abuse




The Field of Drugs of Abuse means the detection or recreational, elicit and other drugs which are
abusive by nature or abusive in overdoses.



Examples of analytes in this Field are: cocaine, canabinoids, barbiturates, amphetamines and
metabolites.



The Field of Endocrinology Testing




The Field of Endocrinology Testing means the measurements of hormones secreted by the endocrine
system.



Examples of analytes in this Field are: T4 (triiodothyronine), T3 uptake, free T4, TSH (thyroid
stimulating hormone), HGH (human growth hormone), somatostatin, cortisol, insulin antibody,
thyroglobulin, HCG, Estrogen, Estriol, Estradiol, FSH (follicle stimulating hormone), LH
(leutinizing hormone), Prolactin, HPL (human placental lactogen), Testosterone, Progesterone.



The Field of Hemostasis




The Field of Hemostasis means the measurement of clotting factors, antigens and antibodies related
to clot formation, antigens and antibodies related to thrombolysis and other markers directly
involved in measuring status of hemostasis.



Examples of analytes in this Field are: soluble fibrins, D-dimer, fibrin degradation products,
beta-thromboglobulin, factor IIA, factor XIIA, other coagulation factors, protein C.



The Field of Immunoglobulin and Serum Protein Testing




The Field of Immunoglobulin and Serum Protein Testing means the detection and measurement of
various immunoglobulin, their classes and sub-classes and serum proteins, excluding proteins
associated with other Fields as defined herein.



Examples of analytes in this Field are: IgG, IgM, IgA and their sub-classes, complement, alpha 1
antitrypsin, C-Reactive protein, ceruloplasmin, haptoglobin, transferrin.



The Field of Mycology/Parasitology Immunoassays




The Field of Mycology/Parasitology Immunoassays means the detection of fungi and parasites, toxins
related thereto and antibodies thereof.



Examples of analytes in this Field are: aspergillus, Candida, markers or antibodies associated with
schistosomiasis, giardia lamblia, leishmaniasis, Lyme Disease, Chagas, toxoplasmosis.




			
	 	 	 
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The Field of Nutritional Status Testing




The Field of Nutritional Status Testing means the measurement of analytes associated with and
indicative of an individual’s nutritional status.



Examples of analytes in this Field are: Vitamin, trace metals, coenzymes.



The Field of Osteoporosis Testing



The Field of Osteoporosis Testing means the detection of markers which solely or partially help
determine the existence of an osteoporotic condition and/or stage of the disease including the
specific treatment thereof.



Examples of analytes in this Field are: osteocalcin, C-telopeptide, N-telopeptide, alkaline
phosphatase, acid phosphatase.



The Field of Therapeutic Drug Monitoring




The Field of Therapeutic Drug Monitoring means the measurement of drug levels in patients in order
to monitor their levels to achieve optimal therapy.



Examples of analytes in this Field are: antibiotic aminoglycosides such as amikacin and,
vancomycin, drugs to treat respiratory diseases such as, drugs to treat neurological diseases such
as Dilantin and Phenobarbital for epilepsy, cyclosporin, drugs to treat cancer such as
methotrexate, Taxol, cardiac drugs such as Digoxin, etc.



The Field of Virology Immunoassays




The Field of Virology Immunoassays means the detection of viruses, toxins related thereto and
antibodies thereof.



Examples of analytes in this Field are: HbsAg, Hepatitis C, HIV, rotavirus, respiratory syncytial
virus, influenza, herpes, chlamydia, HIV, Herpes, chlamydia, HIV, (EXCLUDING HPV INFECTIOUS AGENT
AND COMMERCIAL BLOOD TRANSFUSION TESTING)



			
	 	 	 
	AMENDMENT NO. 2 TO DEVELOPMENT AND SUPPLY AGREEMENT - CONFIDENTIAL
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EXHIBIT I




TRADEMARK USAGE GUIDELINES





			
	 	 	 
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	 	Page 19





 











 










Luminex Corporation




Partner Co-Branding Guidelines














 








	 	 	 	 	 
	Introduction
	 	 	1	 
	Logo usage
	 	 	2	 
	xMAP medallion — Print
	 	 	3	 
	xMAP medallion usage
	 	 	4	 
	xMAP logo — OEM
	 	 	5	 
	xMAP communication imagery
	 	 	6	 
	Partner Co-Branding advertising
	 	 	 	 
	Level 1
	 	 	7	 
	Level 2
	 	 	8	 
	Level 3
	 	 	9-10	 
	Trademark
	 	 	11	 
















 






Introduction



Luminex licenses its core technology to many leading companies in different subsegments within the
life sciences industry. Our partners leverage the multiplexing capabilities of Luminex’s xMAP*
solution against competing single-plex and multiplexed technologies. Through consistent and
cooperative branding, Luminex and our partners can maintain and enhance the strength of the xMAP
message and collectively increase the entry barrier for competing technologies.



The xMAP brand is reflected every time we communicate with the marketplace. From the logo to the
Luminex web site to all of the various xMAP-related marketing materials, the key to effectively
communicating the brand is consistency.



The graphic standards and guidelines presented in this document serve as a tool for ensuring that a
clear and consistent presentation of the Luminex and xMAP brand identities are sustained throughout
all forms of communication. Strictly following these standards and guidelines is paramount to
maintaining the integrity of these brands in the marketplace.





1











 




The xMAP logo must be used in media where Luminex xMAP technology is incorporated into the product
and any of the following are mentioned:





	 	•	 	Multiplex (or other forms of this word — i.e. multipara-meter, multiplexing, multiple tests, bead
array, etc.)
	 
	 	•	 	Microspheres (or other similar reference to the microspheres — i.e. beads)
	 
	 	•	 	xMAP
	 
	 	•	 	Luminex





Proper Usage of the Logos



All logo artwork/files will be provided to you by the Luminex Marketing Department. With the
exception of size, this artwork should not be altered in any way, recreated or scanned in from
another document.




Available File Formats



Luminex anticipates that the xMAP logo will be used in different media — web sites, signage, or
corporate collateral. As a result, the following file formats are available:





	 	•	 	EPS. This is the most popular and recommended format because it is resolution independent and
scales well. It should be used for any collateral that is to be printed — either commercially or
from a desktop printer.
	 
	 	•	 	JPEG. This format is preferred for PowerPoint and other computer-based presentations. A
majority of programs will read JPEGs, but is not intended for high-quality reproduction. Scaling of
JPEGs is not encouraged.




2









 
















Four-color logo









Black and white logo




Footnote




The xMAP® medallion and xMAP® logo are trademarks of Luminex Corporation



It is our belief that the xMAP brand transcends Luminex. As such, it can be effectively
incorporated into a partners’ awareness campaign without detracting from the partner branding. In
an effort to create consistency, these guidelines primarily focus around the use of the xMAP
medallion logo, pictured left. This medallion is the cornerstone of these branding guidelines.



The xMAP
medallion is to be used in all types of print media. For use on OEM products, see page 5.



There are two versions of the logo medallion. The number of colors should be consistent with the
colors in the application (i.e. four-color, two-color [see page 5], or black and white.) The
four-color version of the medallion is always preferred, but in situations where color cannot be
used, the black and white version is acceptable.



Always use the footnote stated in each piece of print material excluding advertisements.




3









 













Background color



It is acceptable to place the logo on a white, black or color background Avoid placing the
medallion on a background where the logo would not be legible









Area of isolation



The space around the logo shall be equal to the height of the “x” in xMAP









Size of logo



The minimum size of the logo in all print shall be 1 5” wide If you encounter a size restraint,
please contact the marketing department at Luminex (512 219 8020) for instruction




Web



In general, follow the usage guidelines for print For specific instructions please contact the
marketing department at Luminex, 512 219 8020





4












 









2-color
xMAP logo







1-color
xMAP logo



When placing the xMAP trademark on OEM products, use the xMAP logo to the left. The minimum width
of the logo should be 1.5”.



The xMAP logo shall be conspicuously and permanently imprinted onto the front of the product (or on
the same side of the product as the OEM’s name) unless otherwise approved in writing by Luminex.
The OEM’s name shall be more prominent than the xMAP logo.



Color usage of the xMAP logo can be displayed in one, two, or four colors. Color usage should be
consistent with the items on the product. For 2-color usage, the logo prints black and red (PMS
185).



If your company’s logo is smaller than the xMAP logo, please contact the marketing department at
Luminex (512.219.8020) for instructions on using the logo.




5









 








[GRAPHIC]




Caption




Supporting visuals



Luminex has created a variety of images to help communicate and demonstrate xMAP technology and
multiplexing These images can be used in all forms of marketing communications as secondary,
supporting imagery Please include captions with the images that explain the visual. To the left is
an example of a caption



Images here are just a sample of what is available Please contact the Marketing Department at
Luminex (512 219 8020) to obtain imagery and supporting copy








Example of a full page partner ad with xMAP supporting imagery and messaging





6









 












There are 3 levels of Luminex Partner Co-Branding advertising The example shown here is Level 1
advertising



The content for Level 1 ads will be developed by Luminex, and Luminex will fund the ads On some
ads, we hope to highlight specific partner products and partner brands In such cases, the content
will be developed in conjunction with the partner



These advertisments will be created by Luminex and partner approval will be secured prior to
releasing the ads for print





7












 










Full page ad




Luminex xMAP sidebars shall be 1/4 of the ad size




Copy will be provided by Luminex, and should not be changed or edited in any way If your ad size
limits the amount of Luminex copy, please contact the marketing department at Luminex for
instructions



Color red is 4-color process C O M 91 Y 76 K 0 Do not alter this color in any way




Body copy
always reverses to white and is set in Berthold Akzidenz Grotesk The
copy should fill up
the sidebar space while staying within the live area of the ad Also, keep the xMAP medallion and
Luminex logo within the live area of the ad



For logo files, please contact the Luminex marketing department




The examples shown here are Level 2 advertising




This level of advertisement includes xMAP® messaging in a sidebar that is 1/4 of the ad space
Based on the particular brand identity, the xMAP sidebar can be placed on the left side right side,
or the bottom of the ad



In order to achieve maximum recognition and brand awareness, the guides for the xMAP sidebars
shown here must be followed exactly



These partner ads will be co funded by Luminex and must be approved by the Luminex marketing
department prior to release








Full page ad




8









 













Full page example




The examples shown on this page and the next are Level 3 advertising.



This level of advertisement includes the 4-color xMAP® medallion. These are ads which are funded by
partners, but mention multiplexing, microspheres, or make other reference to Luminex or xMAP
technology



If
‘Luminex’, ‘microspheres’, ‘beads’,
‘xMAP’®, or ‘multiplexing’, or any related topics, are
mentioned in text, the xMAP medallion must be present in the ad. The size of the medallion cannot
be any smaller than two-thirds the size of the partner logo, or 1.5” wide.



When the medallion is used in partner advertising, or other media, Luminex reserves the right to
approve the size and placement of the medalli on in the ad prior to release.



Always try to place the xMAP medallion on a solid background. For logo files, contact the Luminex
marketing department.








1/3 page island example




9









 













Full spread example









1/2 page spread example





10











 





General Trademark Issues and Guidelines



This section describes the do’s and don’ts of trademark usage, placement and consistency




Philosophy on Trademarks and Brands



Luminex’s trademarks and brands are Luminex intellectual property and are important and valuable
assets of the corporation A trademark is any word, design slogan, sound or symbol (including
nonfunctional unique packaging) that serves to identify a specific product brand A brand is a
trademark or (combination of trademarks) that, through promotion and use has acquired significance
over and above its functional use by a company to distinguish its goods or services from those of
other traders



Trademarks must be used properly Follow these Guidelines for using Luminex’s and other trademarks
designated by Luminex and brands properly in internal and external communications, documents and
electronic messages




The Trademark Golden Rules





	1	 	ALWAYS use a trademark as an adjective, accompanied by an APPROPRIATE noun Do not use a
trademark as a noun Do not pluralize a trademark or make it possessive (which would be using it as
a noun) Do not join a trademark to other words, symbols or numbers, either as one word or with a
hyphen Do not abbreviate a trademark Example of correct usage “xMAP® technology makes your life
easier ® Example of incorrect usage “xMAP® makes your life easier”
	 
	2	 	ALWAYS use the proper spelling and the proper trademark symbol For the trademark symbol the
superscript mode is preferred, but if it is not available, use
parentheses (TM), (SM) or (R) A
service mark is any word, phrase, design or symbol that operates to identify a specific brand of
service
	 
	3	 	ALWAYS use trademarks and brand names in the ways they were intended to be used Do not use them
for goods or services for which they were not originally intended Do not alter them in any way Do
not make puns out of them or portray them in a negative light





Trademark Symbols



In
letters, memos, press releases, white papers, advertising slides, foils, video and other
multimedia presentations





	 	•	 	Properly designate (with ® TM or SM) all of Luminex’s trademarks at the most prominent use
(usually a headline) and again on the first occurrence in copy if it is possible that the document
may be distributed in sections or chapters, then then it is advisable to treat each section as a
first occurrence issue
	 
	 	•	 	In the case of presentation graphics, trademarks should be designated with the proper trademark
symbol on each page, slide, and foil




In newsletters, magazines and publications containing multiple articles





	 	•	 	Properly designate (with ®, TM or SM) all of Luminex’s trademarks on the first occurrence
in the Table of Contents, in headlines and on the first occurrence in EVERY article in which
they are used




In brochures annual/quarterly reports, books, technical documentation, and other bound documents





	 	•	 	Properly designate (with ®, TM or SM) all of Luminex’s trademarks on the first occurrence in the
Table of Contents, in headlines, and on the first occurrence in text (at least once per
chapter/section )
	 
	 	•	 	In all charts or graphs, properly designate trademarks (with ® TM or SM) as they could be copied
or pulled and used independently
	 
	 	•	 	In all tag lines incorporating a trademark slogan, e g ‘ Powered by Luminex® xMAP® Technology”,
always use the trademark symbol in every reference





Position of Trademarks



Consistent
postioning of trademarks is a requirement for correct usage For the trademark symbol,
the superscript mode is preferred, but if it is not available use
parentheses (TM), (SM) or (R) Do
not use the subscript mode as it is non-standard and may not be
complied with by vendors or partners It is not an issue that the
Luminex logo has a subscript*  and the text reference to Luminex has
a superscript




			
	 	 	 
	30106-138-4
	 	11






 









 






EXHIBIT J




QUARTERLY ROYALTY REPORT INFORMATION




Royalty and Net Sales Information:




	 	 	 	 	 
	Net Sales of Developed Kits (generated in prior Quarter)
	 	$	 	 
	Total Royalties due from Net Sales of Developed Kits (generated in
prior Quarter)
	 	$	 	 
	Net Sales of Testing Services (generated in prior Quarter)
	 	$	 	 
	Total Royalties due from Net Sales of Testing Services (generated in
prior Quarter)
	 	$	 	 





Summary
Royalty Data, Calculation and Luminex Instrument Information:




A. Kit Sales (in prior Quarter)




	 	 	 	 	 	 	 	 	 
	Type of Developed Kit Sold	 	Quantity	 	 	Country (where Developed Kit is sold to)	 
	 
	1.
	 	 	 	 	 	 	 	 
	2.
	 	 	 	 	 	 	 	 
	3.
	 	 	 	 	 	 	 	 






B. Testing Services Sales (in prior Quarter)




	 	 	 	 	 	 	 	 	 
	Type of Testing Service Sold	 	Quantity	 	 	Country (where sold to)	 
	 
	1.
	 	 	 	 	 	 	 	 
	2.
	 	 	 	 	 	 	 	 
	3.
	 	 	 	 	 	 	 	 





For avoidance of doubt, RBM shall include data consistent with the current terms and conditions set
forth in this Agreement used to compute Royalties.




			
	 	 	 
	AMENDMENT NO. 2 TO DEVELOPMENT AND SUPPLY AGREEMENT — CONFIDENTIAL
	 	Page 20