EXHIBIT 2.1.2
AMENDMENT NO. 2
TO
AGREEMENT AND PLAN OF MERGER
This AMENDMENT NO. 2 TO AGREEMENT AND PLAN OF MERGER (the "AMENDMENT"),
made as of the 6th day of July, 2005 is entered into by and among Xtrana, Inc.,
a Delaware corporation ("XTRANA"), AIC Merger Corporation, a California
corporation and wholly-owned subsidiary of Xtrana ("MERGERCO"), and Alpha
Innotech Corporation, a California corporation ("AIC"). Xtrana, MergerCo and AIC
are sometimes referred to herein individually as a "PARTY" and collectively as
the "PARTIES."
RECITALS:
A. The Parties have entered into that certain Agreement and Plan
of Merger dated December 14, 2004, as amended by Amendment No. 1 to Agreement
and Plan of Merger dated April 6, 2005 (as amended, the "AGREEMENT"), which
provides for the merger of AIC with and into MergerCo on the term and conditions
set forth in the Agreement. Capitalized terms used herein and not otherwise
defined shall have the meanings assigned thereto in the Agreement.
B. The Parties desire to amend the provisions of the Agreement on
the terms and conditions set forth herein.
AGREEMENT:
NOW, THEREFORE, in consideration of the representations, warranties,
covenants and agreements contained in this Amendment, and for other good and
valuable consideration, the receipt and sufficient of which are hereby
acknowledged, the parties hereto agree as follows:
1. ADJUSTMENT TO EXCHANGE RATIO DEFINITIONS. Pursuant to the
terms of the Agreement, the Parties hereby acknowledge and agree that,
notwithstanding anything to the contrary set forth in the Agreement, as of the
date hereof, (a) the AIC Common Exchange Ratio shall be 0.1142909; (b) the AIC
Series A Preferred Exchange Ratio shall be 0.3033634; and (c) the AIC Series A-1
Preferred Ratio shall be 0.3033634.
2. AMENDMENT TO SECTION 6.4. The first sentence of Section 6.4 of
the Agreement is hereby stricken from the Agreement and replaced with the
following:
"As soon as reasonably practicable, AIC shall submit this
Agreement and the transactions contemplated by this Agreement to the
AIC Shareholders for approval and adoption."
3. REGISTRATION COVENANT. The Agreement is hereby amended to add
the following new Section 6.17:
"6.17 REGISTRATION ON FORM S-3. In case Xtrana shall at any
time after the Closing become eligible to use Form S-3 for the
registration of resale of securities by its stockholders and receives
from any holder or holders of Registrable Securities (as defined
below) a written request or requests that Xtrana effect a registration
on Form S-3 with respect to all or a part of the Registrable
Securities owned by such holder or holders, then Xtrana will: (a)
promptly give written notice of the proposed registration and to all
other holders of Registrable Securities; and (b) as soon as
practicable, use commercially reasonable efforts to effect such
registration as would permit or facilitate the sale and distribution
of all or such portion of such holders or holders' Registrable
Securities as are specified in such request, together with all or such
portion of the Registrable Securities of any other holder of
Registrable Securities joining in such request as are specified in a
written request given within twenty (20) days after Xtrana provides
the notice contemplated by clause (a). Notwithstanding the foregoing,
Xtrana shall not be obligated to effect any such registration,
qualification or compliance pursuant to this SECTION 6.17 (i) if Form
S-3 is not available for such offering by the holders; (ii) if the
holders, together with the holders of any other securities of Xtrana
entitled to inclusion in such registration, propose to sell
Registrable Securities and such other securities (if any) at an
aggregate price to the public of less than $1,000,000; (iii) if the
Xtrana shall furnish to the holders a certificate signed by the
President or Chief Executive Officer of Xtrana stating that in the
good faith judgment of the Board of Directors of Xtrana, it would be
materially detrimental to Xtrana and its stockholders for such Form
S-3 registration to be effected at such time, in which event the
Company shall have the right to defer the filing of the Form S-3
registration statement no more than once during any twelve month
period for a period of not more than ninety (90) days after receipt of
the request of the holder or holders under this SECTION 6.17; (iii) if
Xtrana has already effected a registration on Form S-3 pursuant to
this SECTION 6.17; or (iv) in any particular jurisdiction in which
Xtrana would be required to qualify to do business or to execute a
general consent to service of process in effecting such registration,
qualification or compliance. For purposes hereof, the term
"REGISTRABLE SECURITIES" means: (1) any Xtrana Common Stock held by an
AIC Shareholder and issued to such AIC Shareholder pursuant to this
Agreement and (2) any shares of Xtrana Common Stock held by an AIC
Shareholder and issued as a dividend or other distribution with
respect to, or in exchange for or in replacement of, any shares of
Xtrana Common Stock described in clause (1) of this definition;
PROVIDED, HOWEVER, that "Registrable Securities" shall exclude any
Registrable Securities sold in a public offering, whether sold
pursuant to Rule 144 promulgated under the Securities Act, or in a
registered offering, or otherwise or securities which can be sold in
accordance with Rule 144(k) promulgated under the Securities Act."
4. AMENDMENT TO SECTION 7.1.2. Section 7.1.2 of the Agreement is
hereby amended in its entirety to read as follows:
"7.1.2 REPRESENTATION LETTERS. At or prior to Closing, each
AIC Shareholder shall have delivered to Xtrana an executed investment
representation
2
letter containing such representations as required to comply with
applicable provisions of the Securities Act and otherwise in form and
substance reasonably acceptable to Xtrana."
5. AMENDMENT TO SECTION 8.1.3. Section 8.1.3 of the Agreement is
hereby amended in its entirety to read as follows:
"by either Xtrana or AIC if the Merger shall not have been
consummated on or before September 30, 2005 (other than as a result of
the failure of the Party seeking to terminate this Agreement to
perform its obligations under this Agreement required to be performed
at or prior to the Effective Time);"
6. AMENDMENT TO SECTION 9.4. Section 9.4 of the Agreement is
hereby amended in its entirety to read as follows:
"9.4 LIMITATION ON CLAIMS. No claims shall be payable under
this SECTION 9 with respect to any Damages unless and until the
aggregate Damages owing under this SECTION 9 in respect of any
Indemnitee (as defined below) exceed $100,000, in which case the
Indemnitee shall be entitled to indemnification from the indemnifying
party for all Damages without regard to such threshold. As used
herein, an "INDEMNITEE" means one or more of the AIC Indemnified
Parties or the Xtrana Indemnified Parties to the extent that such
parties seek indemnification from the other pursuant to this SECTION
9. The Xtrana Indemnified Parties' sole and exclusive remedy for
indemnification claims against AIC under this Agreement shall consist
of its right to set off any Damages against the Holdback Shares and
the AIC Indemnified Parties' sole and exclusive remedy for
indemnification claims against Xtrana under this Agreement shall
consist of their right to receive additional shares of Xtrana Common
Stock out of the AIC Indemnification Shares, in either case pursuant
to the procedure described in SECTION 9.5 hereof. No claims shall be
payable with respect to any representation or warranty unless such
claim is asserted in writing on or before 5:00 p.m. Pacific Standard
Time on March 31, 2006 (the "INDEMNIFICATION TERMINATION PERIOD"). All
Holdback Shares not then subject to indemnification claims under
SECTION 9.3.2 hereof shall be released to the AIC's pre-Merger
shareholders pursuant to the terms of the Escrow Agreement upon the
expiration of the Indemnification Termination Period. All AIC
Indemnification Shares not then subject to indemnification claims
under SECTION 9.3.1 hereof shall be released from escrow and
permanently cancelled pursuant to the Escrow Agreement upon the
expiration of the Indemnification Termination Period."
7. RATIFICATION OF REMAINING TERMS. Except as set forth above,
the remaining terms and conditions of the Agreement shall not be amended by this
Amendment and shall remain in full force and effect, and binding in accordance
with their respective terms.
3
8. COUNTERPARTS. This Amendment may be executed in two or more
counterparts, each of which shall constitute an original, but all of which, when
taken together, shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the date set forth in the first paragraph.
ALPHA INNOTECH CORPORATION
By: /S/ XXXXXX XXXXXXXX
-------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Chief Executive Officer
XTRANA, INC.
By: /S/ XXXXX X. XXXXXXXXXXX
-------------------------------------
Name: Xxxxx X. Xxxxxxxxxxx
Title: Chief Executive Officer
AIC MERGER CORPORATION
By: /S/ XXXXX X. XXXXXXXXXXX
-------------------------------------
Name: Xxxxx X. Xxxxxxxxxxx
Title: President
4
