-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, LUd9SnQzO5+daZSpBCMJ5fWBXZvxaXbqDvX4Vm5d3HxXxkKqOtjyV3zH2zmV6Wa0 KLY3WruEQ49gEU4Wn3DDfg== 0001170918-05-000460.txt : 20050711 0001170918-05-000460.hdr.sgml : 20050711 20050711122810 ACCESSION NUMBER: 0001170918-05-000460 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 2 CONFORMED PERIOD OF REPORT: 20050706 ITEM INFORMATION: Entry into a Material Definitive Agreement ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20050711 DATE AS OF CHANGE: 20050711 FILER: COMPANY DATA: COMPANY CONFORMED NAME: XTRANA INC CENTRAL INDEX KEY: 0000830736 STANDARD INDUSTRIAL CLASSIFICATION: IN VITRO & IN VIVO DIAGNOSTIC SUBSTANCES [2835] IRS NUMBER: 581729436 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 001-14257 FILM NUMBER: 05947403 BUSINESS ADDRESS: STREET 1: PO BOX 668 CITY: SEDALIA STATE: CO ZIP: 80135 BUSINESS PHONE: 3034664424 MAIL ADDRESS: STREET 1: PO BOX 668 CITY: SEDALIA STATE: CO ZIP: 80135 FORMER COMPANY: FORMER CONFORMED NAME: BIOPOOL INTERNATIONAL INC DATE OF NAME CHANGE: 19920703 FORMER COMPANY: FORMER CONFORMED NAME: CYTRX BIOPOOL LTD DATE OF NAME CHANGE: 19890716 8-K 1 fm8k-070605.txt FORM 8-K (7-6-05) UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM 8-K CURRENT REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934 Date of Report (Date of earliest event reported) JULY 6, 2005 XTRANA, INC. (Exact name of registrant as specified in its charter) DELAWARE 1-14257 58-1729436 (State or other jurisdiction (Commission (IRS Employer of incorporation) File Number) Identification No.) P.O. BOX 668, SEDALIA, COLORADO 80135 (Address of principal executive offices) (Zip Code) Registrant's telephone number, including area code: (303) 466-4424 Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (SEE General Instruction A.2. below): |_| Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |_| Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |_| Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |_| Pre-commencement communications pursuant to Rule 13e-4(c)) under the Exchange Act (17 CFR 240.13e-4c)) ITEM 1.01 ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT. AMENDMENT TO AGREEMENT AND PLAN OF MERGER On July 6, 2005, Xtrana, Inc. a Delaware corporation ("Xtrana"), AIC Merger Corporation, a California corporation and a wholly-owned subsidiary of Xtrana ("Xtrana Sub"), and Alpha Innotech Corporation, a California corporation ("Alpha Innotech"), entered into an Amendment No. 2 to the Agreement and Plan of Merger which the parties initially entered into on December 14, 2004 (as amended, the "Merger Agreement"). As previously disclosed, the Merger Agreement provides that Xtrana Sub will be merged with and into Alpha Innotech, with Alpha Innotech continuing after the merger as the surviving corporation and a wholly-owned subsidiary of Xtrana (the "Merger"). This second amendment included the following changes to the Merger Agreement: - memorializing the adjusted exchange ratios for the Merger, which were adjusted pursuant to the terms of the Merger Agreement; - elimination of the requirement for a fairness hearing before the California Department of Corporations as a condition to closing of the Merger; - the addition as a closing condition that the Alpha Innotech shareholders execute and deliver investment representation letters in connection with their acquisition of Xtrana shares in the Merger; - the addition of a covenant of the combined company to register for resale the shares issued to the Alpha Innotech shareholders in the event that the company becomes eligible for use of Form S-3 for such registration; - an extension of the termination date for the Merger Agreement from July 31, 2005 to September 30, 2005, as a result of the delays in connection with the SEC's review of Xtrana's preliminary proxy statement; and - change in the date of termination of the escrow and indemnification period to March 31, 2006. A copy of the text of the amendment to the Merger Agreement is filed as Exhibit 2.1.2 hereto and is incorporated herein by reference. There are no material relationships between Xtrana and Alpha Innotech, other than in respect of the Merger Agreement and related documents. Xtrana Sub is a wholly-owned subsidiary of Xtrana, formed solely for the purpose of effecting the Merger. In connection with the Merger, Xtrana has filed a preliminary proxy statement for a stockholder meeting with the Securities and Exchange Commission. Investors and security holders are advised to read the definitive proxy statement when it becomes available because it will contain important information about the proposed merger. Investors and security holders may obtain a free copy of the proxy statement (when available) and other documents filed by 2 Xtrana with the Securities and Exchange Commission at the Securities and Exchange Commission's web site at http://www.sec.gov. Free copies of the proxy statement (when available) and other documents filed by Xtrana with the Securities and Exchange Commission may also be obtained from Xtrana by directing a request to Xtrana, Inc., P.O. Box 668, Sedalia, Colorado 80135, tel: (303) 466-4424. In addition to Xtrana, Xtrana's directors and officers may be deemed to be participants in the solicitation from Xtrana stockholders of proxies in favor of approval of the merger agreement. Such participants may have interests in the merger, including as a result of holding shares of Xtrana common stock or derivative securities, such as stock options, the value of which is related to the price of Xtrana common stock. Information regarding the participants and their interests will be contained in the proxy statement to be filed by Xtrana with the SEC in connection with the special meeting of shareholders. ITEM 9.01 FINANCIAL STATEMENTS AND EXHIBITS. (c) Exhibits. The following exhibits are filed herewith: EXHIBIT NUMBER DESCRIPTION ------- ----------- 2.1.2 Amendment No. 2 to Agreement and Plan of Merger dated as of December 14, 2004, by and among Xtrana, Inc., AIC Merger Corp. and Alpha Innotech Corporation. 3 SIGNATURE Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. XTRANA, INC. Date: July 11, 2005 By: /S/ JAMES CHAMBERLAIN ------------------------------ James Chamberlain Chief Executive Officer 4 EXHIBIT INDEX EXHIBIT NUMBER DESCRIPTION - ------- ----------- 2.1 Amendment No. 2 to Agreement and Plan of Merger dated as of December 14, 2004, by and among Xtrana, Inc., AIC Merger Corp. and Alpha Innotech Corporation. 5 EX-2 2 ex2-1_2.txt EX-2.1.2 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/ HASEEB CHAUDHRY ------------------------------------- Name: Haseeb Chaudhry Title: Chief Executive Officer XTRANA, INC. By: /S/ JAMES H. CHAMBERLAIN ------------------------------------- Name: James H. Chamberlain Title: Chief Executive Officer AIC MERGER CORPORATION By: /S/ JAMES H. CHAMBERLAIN ------------------------------------- Name: James H. Chamberlain Title: President 4 -----END PRIVACY-ENHANCED MESSAGE-----