EXHIBIT 2.1.1
AMENDMENT NO. 1
TO
AGREEMENT AND PLAN OF MERGER
This AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER (the "AMENDMENT"),
made this 6th day of April, 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 (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. In order to clarify the Parties intended definition of
"Minimum Closing Date Cash" and in light of changes to the business and
financial condition of AIC and in order to clarify the parties, 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. AMENDMENT TO DEFINITION OF "MINIMUM CLOSING DATE CASH." The
definition of "Minimum Closing Date Cash" set forth in Section 1.1 of the
Agreement is hereby amended to read as follows:
""MINIMUM CLOSING DATE CASH" means an amount equal to
$2,950,000 LESS the sum of (i) the aggregate amount advanced
to AIC by Xtrana pursuant to the Promissory Note, (ii) the
Audit Fees, and (iii) all other out-of-pocket costs and
expenses incurred by Xtrana on or after January 1, 2005 and
through the Closing Date which would not have otherwise been
incurred by Xtrana but for delay in consummation of the Merger
resulting from the necessity of such audit of the AIC
financial statements, including, but not limited to, the
consulting fees of $5,000 per month payable to Xxxxx
Xxxxxxxxxxx for serving as interim Chief Executive Officer and
interim Chief Financial Officer of Xtrana, the director fees
incurred by Xtrana (consistent with past practice and policy),
consulting fees for
the services of Xxxxxx Xxxxxxxxx, and similar direct costs
incurred after January 1, 2005 and through the Closing Date,
but not exceeding in the aggregate $15,000 per month, unless
otherwise agreed in writing between AIC and Xtrana."
2. AMENDMENT TO EXCHANGE RATIO DEFINITIONS. The definitions of
each of the terms "AIC Common Exchange Ratio," "AIC Series A Preferred Exchange
Ratio" and "AIC Series A-1 Preferred Ratio" set forth in Section 1.1 of the
Agreement are hereby amended to add the following sentence to the end of each
such definition:
"The foregoing exchange ratio shall be subject to
further adjustment as provided in SECTION 2.9.1."
3. AMENDMENT TO SECTION 6.11. Section 6.11 of the Agreement is
hereby amended in its entirety to read as follows:
"6.11 DEFERRED COMPENSATION. At the Closing, AIC's
aggregate obligations for all deferred compensation shall be
not more than $550,000 (the "DEFERRED COMPENSATION"). A
schedule of the Deferred Compensation will be delivered by AIC
to Xtrana prior the Closing and will be attached to this
Agreement as SCHEDULE 6.11. At or promptly following the
Closing, the Surviving Corporation or Xtrana shall pay up to a
total of $100,000 of the Deferred Compensation.
Notwithstanding the foregoing, all remaining Deferred
Compensation shall be paid by the Surviving Corporation or
Xtrana by June 30, 2006."
4. CLOSING CONDITIONS. Section 7.2 of the Agreement is hereby
amended to add the following new Section 7.2.14 and Section 7.2.15:
"7.2.14 AIC shall have received additional financing
of at least $1,500,000 on terms and conditions reasonably
acceptable to Xtrana, and such financing shall not result in
any dilution to the Xtrana stockholders' percentage ownership
of the issued outstanding shares of capital stock of the
Surviving Entity at the Effective Time.
7.2.15 Each of Xxxxxx Xxxxxxxx and Xxxxxx Xxx shall
have entered into an amendment to his Employment Agreement
(together, the "EMPLOYMENT AGREEMENT AMENDMENTS"), which
Employment Agreement Amendments shall provide, among other
things, for a reduction in annual base salary to $100,000
effective as of January 1, 2005 and shall otherwise be in form
and substance acceptable to Xtrana, and the Employment
Agreement Amendments shall be in full force and effect as of
the Closing."
5. 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.
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6. 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.
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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
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Name: Xxxxxx Xxxxxxxx
Title: Chief Executive Officer
XTRANA, INC.
By: /S/ XXXXX X. XXXXXXXXXXX
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Name: Xxxxx X. Xxxxxxxxxxx
Title: Chief Executive Officer
AIC MERGER CORPORATION
By: /S/ XXXXX X. XXXXXXXXXXX
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Name: Xxxxx X. Xxxxxxxxxxx
Title: President
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