AMENDMENT NO. 2
TO
AGREEMENT AND PLAN OF REORGANlZATION
Amendment No. 2, dated as of October 6, 1995 (this "Amendment") to the
Agreement and Plan of Reorganization dated as of April 21, 1995, (the "Merger
Agreement") as amended by Amendment No 1, dated August 1, 1995, between Alamar
Biosciences, Inc., a California corporation ("Alamar"), and AccuMed, Inc., an
Illinois corporation doing business as AccuMed International, Inc. ("AccuMed").
NOW, THEREFORE, in consideration of the mutual covenants and promises set
forth herein and for other good and valuable consideration, the adequacy,
sufficiency and receipt of which are hereby acknowledged, and intending to be
legally bound, in accordance with Section 9.4 of the Merger Agreement, the
parties agree as follows:
1. Section 1.6 of the Merger Agreement is hereby deleted and the following
is inserted in lieu thereof:
"1.6 Effect on Capital Stock and Warrants. At the Effective Time, by
virtue of the Merger and without any action on the part of AccuMed or
the holders of any of the following securities:
(a) Conversion of AccuMed Capital Stock and Warrants. Each share
of Common Stock, no par value, of AccuMed (the "Accumed Capital
Stock") and each Warrant to purchase a share of AccuMed Capital
Stock (the "AccuMed Warrants") issued and outstanding immediately
prior to the Effective Time will be canceled and extinguished and
will be converted automatically into the right to receive, in the
case of AccuMed Capital Stock, or the right to purchase, in the
case of AccuMed Warrants, the former holder's pro rata portion of
6,178,104 shares of Common Stock, no par value, of Alamar (the
"Alamar Common Stock"). Each share of AccuMed Capital Stock shall
be canceled and converted as set forth in this Section 1.6 (a)
upon surrender of the certificate representing such share of
AccuMed Capital Stock in the manner provided in Section 1.7 (or
in the case of a lost, stolen or destroyed certificate, upon
delivery of an affidavit (and bond, if required) in manner
provided in Section 1.9). Each AccuMed Warrant shall be canceled
and converted into a warrant to purchase the holder's pro rata
portion of the Alamar Common Stock (an "Alamar Warrant") as set
forth in Section 1.13 upon surrender of the warrant certificate
representing such AccuMed Warrant.
(b) Adjustments to Exchange Ratio. The number of shares of Alamar
Common Stock and Alamar Warrants into which each share of AccuMed
Common Stock and each AccuMed Warrant, respectively, shall
convert pursuant to this Article I shall be adjusted to reflect
fully the effect of any split, reverse stock split, stock
dividend (including any dividend or distribution of securities
convertible into Alamar Common Stock), reorganization,
recapitalization or other like change with respect to Alamar
Common Stock or Accumed Capital Stock occurring after the date
hereof and prior to the Effective Time, except for the issuance
of any shares of Alamar Common Stock pursuant to the S Private
Placement and/or the D Private Placement
(c) Fractional Shares. No fraction of a share of Alamar Common
Stock will be issued by virtue of the Merger; in lieu thereof
each AccuMed Shareholder who would otherwise be entitled receive
to a fraction of a share of Alamar Common Stock (after
aggregating all fractional shares of Alamar Common Stock to be
received by such holder) shall receive one additional share of
Alamar Common Stock if such fraction is one-half or more and no
additional share of Alamar Common Stock if such fraction is less
than one-half. Likewise, Alamar Warrants will be issued for the
purchase of whole shares only and not for any fraction of a share
of Alamar Common Stock; each holder of an AccuMed Warrant who
would otherwise be entitled to receive an Alamar Warrant for the
purchase of a fraction of a share of Alamar Common Stock (after
aggregating all fractional shares of Alamar Common Stock such
holder would be entitled to purchase pursuant to the Alamar
Warrants to be received by such holder) shall receive a Warrant
to purchase one additional share of Alamar Common Stock if such
fraction is one-half or more and no additional share of Alamar
Common Stock if such fraction is less than one-half.
2. Section 2.1 of the Merger Agreement is hereby deleted and the following
is inserted in lieu thereof:
2.1 Grant of Option. In further consideration of AccuMed's execution of
this Agreement and consummation of the Merger and the operation of
AccuMed's business by its management and employees during the period from
the date hereof until the Closing Time for the ultimate benefit of Alamar,
Alamar shall, on the Closing Date, grant to AccuMed's officers and
employees, options (the "Options") to purchase from Alamar up to an
additional 1,000,000 shares of Alamar Common Stock plus, if the Option
Price (as defined below) is greater than $1.25, such number of shares of
Alamar Common Stock as shall be determined by subtracting $1.25 from the
Option Price, then multiplying by up to 1,000,000 and dividing by the
Option Price (collectively, the "Option Shares"). The Options shall be
granted pursuant to the Stock Option Plan of Alamar in effect as of the
Closing Date (the "Option Plan"). The Option Shares shall be distributed on
the Closing Date, as determined by the Board of Directors of AccuMed prior
to the Closing Date, subject to applicable law and the terms of the Option
Plan. Alamar covenants that, at all times from the date hereof until the
earlier of the expiration of the Option Period (as hereinafter defined) or
the exercise in full of all of the Options, Alamar will have reserved for
issuance under the Option Plan such number of authorized but not issued and
not outstanding shares of Alamar Common Stock as equals (a) the aggregate
number of Option Shares issuable upon exercise of Options, less (b) such
number of shares of Alamar Common Stock as have previously been issued upon
exercise of Options. The Option Plan shall be amended, if necessary, so
that a sufficient number of shares of Alamar Common Stock are reserved for
issuance upon exercise of Options, and any such amendment shall be
submitted to Alamar's shareholders for approval at the Alamar Shareholders'
Meeting.
IN WITNESS WHEREOF, the parties have caused this Amendment to be duly
executed as of the date first above written.
ALAMAR BIOSCIENCES, INC.
By: /s/ Xxxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxxxx
Acting Chief Executive Officer
ACCUMED, INC.
By: /s/ Xxxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxxxx
Chief Executive Officer
