-----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, Ky5REGIlI70/1Ejr0PdGL+Lvdf8Q+8Ln4renyy7bSK/bj41qSNhdepKBZmHvvzNt Cd+BMtZ/5f6pBGzojDpr+w== 0001170918-06-000320.txt : 20060406 0001170918-06-000320.hdr.sgml : 20060406 20060406171452 ACCESSION NUMBER: 0001170918-06-000320 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20060406 DATE AS OF CHANGE: 20060406 EFFECTIVENESS DATE: 20060406 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ALPHA INNOTECH CORP CENTRAL INDEX KEY: 0000830736 STANDARD INDUSTRIAL CLASSIFICATION: LABORATORY ANALYTICAL INSTRUMENTS [3826] IRS NUMBER: 581729436 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-133055 FILM NUMBER: 06745815 BUSINESS ADDRESS: STREET 1: 2401 MERCED ST. CITY: SAN LEANDRO STATE: CA ZIP: 94577 BUSINESS PHONE: 5104839620 MAIL ADDRESS: STREET 1: 2401 MERCED ST. CITY: SAN LEANDRO STATE: CA ZIP: 94577 FORMER COMPANY: FORMER CONFORMED NAME: XTRANA INC DATE OF NAME CHANGE: 20010702 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 S-8 1 fms-8.txt AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 6, 2006 REGISTRATION NO. 333-_________ ================================================================================ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ---------- ALPHA INNOTECH CORP. (Exact Name of Registrant as Specified in Its Charter) DELAWARE 58-1729436 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) 2401 MERCED STREET SAN LEANDRO, CALIFORNIA 94577 (Address of principal executive offices) HASEEB CHAUDHRY CHIEF EXECUTIVE OFFICER ALPHA INNOTECH CORP. 2401 MERCED STREET SAN LEANDRO, CALIFORNIA 94577 (510) 483-9620 (Name, address, including zip code, and telephone number, including area code, of agent for service) ---------- COPIES TO: STEPHEN C. FERRUOLO HELLER EHRMAN LLP 4350 LA JOLLA VILLAGE DRIVE, 7TH FLOOR SAN DIEGO, CA 92122-1246 TELEPHONE: (858) 450-8400 FACSIMILE: (858) 450-8499 AMENDED AND RESTATED 1999 STOCK OPTION PLAN 2001 MILESTONE STOCK OPTION PLAN NON-QUALIFIED STOCK OPTION AGREEMENT CALCULATION OF REGISTRATION FEE ================================================================================ PROPOSED PROPOSED MAXIMUM MAXIMUM TITLE OF OFFERING AGGREGATE AMOUNT OF SECURITIES TO AMOUNT TO BE PRICE OFFERING REGISTRATION BE REGISTERED REGISTERED(1) PER SHARE(2) PRICE(2) FEE - -------------------------------------------------------------------------------- Common Stock, 854,311 $1.70 $1,452,329 $156.00 $0.01 par value ================================================================================ (1) Includes (a) 434,305 shares of Registrant's Common Stock to be issued pursuant to the Amended and Restated 1999 Stock Option Plan, (b) 120,006 shares of Registrant's Common Stock to be issued pursuant to the 2001 Milestone Plan, and (c) 300,000 shares of Registrant's Common Stock to be issued pursuant to the Non-Qualified Stock Option Agreement. (2) Estimated solely for the purpose of computing the amount of the registration fee pursuant to Rule 457(c) under the Securities Act of 1933, as amended, based on the average of the high and low prices of the Registrant's Common Stock reported on the OTC Bulletin Board on April 3, 2006. ================================================================================ PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE The following documents, which have been filed by Alpha Innotech Corp., formerly Xtrana, Inc. (the "Registrant") with the Securities and Exchange Commission (the "Commission"), are hereby incorporated by reference in this Registration Statement: (a) Registrant's Annual Report on Form 10-KSB, as amended, for the period ended December 31, 2005; (b) The description of the Registrant's common stock contained in the Registrant's Registration Statement on Form 8-A, filed May 1, 1989 under the Securities Exchange Act of 1934, as amended (the "Exchange Act") including any amendments or reports filed for the purposes of updating such description. All documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, prior to the filing of a post-effective amendment to this Registration Statement which indicates that all securities offered hereby have been sold or which deregisters all securities remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of filing of such documents. ITEM 4. DESCRIPTION OF SECURITIES Not applicable. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL Not applicable. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS Section 102 of the Delaware General Corporation Law allows a corporation to eliminate the personal liability of directors of a corporation to the corporation or to any of its stockholders for monetary damage for a breach of his or her fiduciary duty as a director, except in the case where the director breached his or her duty of loyalty, failed to act in good faith, engaged in intentional misconduct or knowingly violated a law, authorized the payment of a dividend or approved a stock repurchase in violation of Delaware corporate law or obtained an improper personal benefit. The Registrant's Certificate of Incorporation contains a provision that eliminates directors' personal liability as set forth above. Section 145 of the Delaware General Corporation Law ("DGCL") provides that the Registrant may indemnify an officer or director who is made a party or threatened to be made a party to any action or proceeding (including a law suit or derivative action) because of his position, against expenses actually and reasonably incurred by him in connection with the action, if he acted in good faith in a manner he reasonably believed to be in or not opposed to the best interests of the Registrant, and, with respect to any criminal action or proceeding, had no reasonable cause to believe that his conduct was unlawful. If the officer or director is adjudged liable to the Registrant, indemnity can be made only by court order. If the director or officer is successful on the merits or otherwise, he must be indemnified against all expenses actually and reasonably incurred. Also, Section 145 of the DGCL provides that the Registrant may advance expenses incurred by a director or officer in defending an action or proceeding if the director or officer agrees to repay such amounts if it is determined that he is not entitled to be indemnified. Article VII, Section 8.1 of the Registrant's Bylaws provides that the Registrant shall (a) indemnify any officer or director who is made a party or threatened to be made a party to any action or 2 proceeding by or in the right of the Registrant, because of his or her position, against expenses actually and reasonably incurred by him in connection with the action or proceeding, and (b) indemnify any officer or director who is made a party or threatened to be made a party to any action or proceeding (other than an action by or in the right of the Registrant), because of his or her position, against expenses, judgments, fines and settlements actually and reasonably incurred by him in connection with the action or proceeding, to the fullest extent permissible under subsections (a) through (e) of Section 145 of the DGCL. Thus, directors and officers of the Registrant will be indemnified by the Registrant provided that each such person acted in good faith and in a manner that he reasonably believed was in or not opposed to the Registrant's best interests, and, with respect to any criminal action, if such person had no reasonable cause to believe that his conduct was unlawful. The Registrant may not indemnify a director or officer, absent of court order, if such person was found liable to the Registrant and the Registrant must indemnify any director or officer who is successful on the merits of his defense. Additionally, the Registrant may advance expenses to a director or officer in accordance with Section 145 of the DGCL summarized in the preceding paragraph. The Registrant has also obtained on behalf of its officers and directors insurance against losses arising from any claim asserted against or incurred by such individual in any such capacity, subject to certain exclusions. See also the undertakings set out in response to Item 9. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED Not applicable. ITEM 8. EXHIBITS Item No. Description of Item - ---- ----------------------------------------------------------------------- 10.1 Amended and Restated 1999 Stock Option Plan (Incorporated by reference to the Registrant's Current Report Form 8-K filed on October 7, 2005) 10.2 2001 Milestone Stock Option Plan (Incorporated by reference to the Registrant's Current Report Form 8-K filed on October 7, 2005) 10.3 Non-Qualified Stock Option Agreement (Incorporated by reference to the Registrant's Current Report Form 8-K filed on December 27, 2005) 10.4 Form of Stock Option Agreement 5.1 Opinion of Heller Ehrman LLP 23.1 Consent of Independent Auditors 23.2 Consent of Heller Ehrman LLP (filed as part of Exhibit 5.1) 24.1 Power of Attorney (See page 5) ITEM 9. UNDERTAKINGS A. The undersigned registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post- 3 effective amendment to this registration statement; (i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; (ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement; and (iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; provided, however, that paragraphs A(1)(i) and A(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the registrant pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement. (2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. B. The undersigned registrant hereby undertakes that, for purposes of determining liability under the Securities Act of 1933, each filing of the registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 that is incorporated by reference in the registration statement shall be deemed a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. C. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. 4 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the city of San Leandro, State of California, on this 6th day of April, 2006. ALPHA INNOTECH CORP. By: /S/ HASEEB CHAUDHRY -------------------------------- Haseeb Chaudhry Chief Executive Officer POWER OF ATTORNEY TO SIGN AMENDMENT KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below does hereby constitute and appoint Haseeb Chaudhry, with full power of substitution, such person's true and lawful attorneys-in-fact and agents for such person in such person's name, place and stead, in any and all capacities, to sign any or all amendments (including post-effective amendments) to this Registration Statement on Form S-8 and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises in order to effectuate the same as fully, to all intents and purposes, as he or such person might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act, this Registration Statement on Form S-8 has been signed by the following persons in the capacities and on the dates indicated. Signature Capacity Date - --------------------------- ------------------------ -------------- Chief Executive Officer /S/ Haseeb Chaudhry and Director April 6, 2006 - --------------------------- Haseeb Chaudhry Acting Chief Financial /s/ Ron Bissinger Officer and Chief April 6, 2006 - --------------------------- Operating Officer Ron Bissinger (Principal Financial and Accounting Officer) /s/ William Snider Chairman April 6, 2006 - --------------------------- William Snider /s/ Michael D. Bick, Ph.D Director April 4, 2006 - --------------------------- Michael D. Bick, Ph.D. /s/ James H. Chamberlain Director April 4, 2006 - --------------------------- James H. Chamberlain /s/ John Hodgman Director April 4, 2006 - --------------------------- John Hodgman /s/ Nagesh Mhatre Director April 4, 2006 - --------------------------- Nagesh Mhatre /s/ Darryl Ray, Ph.D. Director April 4, 2006 - --------------------------- Darryl Ray, Ph.D. 5 INDEX TO EXHIBITS Item No. Description of Item - ---- ----------------------------------------------------------------------- 10.1 Amended and Restated 1999 Stock Option Plan (Incorporated by reference to theRegistrant's Current Report Form 8-K filed on October 7, 2005) 10.2 2001 Milestone Plan (Incorporated by reference to the Registrant's Current Report Form 8-K filed on October 7, 2005) 10.3 Non-Qualified Stock Option Agreement (Incorporated by reference to the Registrant's Current Report Form 8-K filed on December 27, 2005) 10.4 Form of Stock Option Agreement 5.1 Opinion of Heller Ehrman LLP 23.1 Consent of Independent Auditors 23.2 Consent of Heller Ehrman LLP (filed as part of Exhibit 5.1) 24.1 Power of Attorney (See page 5) 6 EX-5 2 ex5-1.txt EX-5.1 EXHIBIT 5.1 OPINION OF HELLER EHRMAN LLP April 6, 2006 Alpha Innotech Corp. 2401 Merced Drive San Leandro, CA 94577 REGISTRATION STATEMENT ON FORM S-8 Ladies and Gentlemen: We have examined the Registration Statement on Form S-8 (the "REGISTRATION STATEMENT") filed by you with the Securities and Exchange Commission (the "COMMISSION") on April 6, 2006 in connection with the registration under the Securities Act of 1933, as amended, of a total of 854,311 shares of your Common Stock (the "SHARES"), which reserved for issuance under the Amended and Restated 1999 Stock Option Plan, (the "1999 Plan), the 2001 Milestone Stock Option Plan (the "Bonus Plan"), and the Non-Qualified Stock Option Agreement dated as of December 20, 2005 (the "NQO", together with the 1999 Plan and the Bonus Plan referred to as the "Plans"). Such number consists of (i) 434,305 shares available for issuance under the 1999 Plan; (ii) 120,006 shares reserved under the Bonus Plan, and (iii) 300,000 shares reserved for the NQO. In connection with this opinion, we have assumed the authenticity of all records, documents and instruments submitted to us as originals, the genuineness of all signatures, the legal capacity of natural persons and the conformity to the originals of all records, documents and instruments submitted to us as copies. We have based our opinion upon our review of the following records, documents and instruments: (a) The Amended and Restated Certificate of Incorporation of the Company, as amended to date, certified by the Secretary of State of the State of Delaware as of April 5, 2006 and certified to us by an officer of the Company as being complete and in full force and effect as of the date of this opinion; (b) The Bylaws of the Company, as amended to date, certified to us by an officer of the Company as being complete and in full force and effect as of the date of this opinion; (c) A Certificate of an officer of the Company (i) attaching records certified to us as constituting all records of proceedings and actions of the Board of Directors and stockholders of the Company relating to the adoption and approval of the Plans and the Registration Statement, and (ii) certifying as to certain factual matters; (d) A Certificate of American Stock Transfer & Trust Company, the transfer agent of the Company, certifying as to the number of outstanding shares of common stock of the Company; (e) The Registration Statement; and (f) The Plans. This opinion is limited to the federal laws of the United States of America and the General Corporation Law of the State of Delaware. We disclaim any opinion as to any other statute, rule, regulation, ordinance, order or other promulgation of any other jurisdiction or any regional or local governmental body or as to any related judicial or administrative opinion. Based upon the foregoing and our examination of such questions of law as we have deemed necessary or appropriate for the purpose of this opinion, and assuming that (i) the Registration Statement becomes and remains effective during the period when the Shares are offered, issued and sold, (ii) the Shares to be sold are issued in accordance with the terms of the applicable Plan, (iii) the Company receives the full consideration for the Shares as stated in the applicable Plan, (iv) the per share consideration for each Share includes payment of cash or other lawful consideration at least equal to the par value of the Company's Common Stock, and (v) all applicable securities laws are complied with, it is our opinion that the Shares covered by the Registration Statement, when issued and sold by the Company, after payment therefore in the manner provided in the applicable Plan and the Registration Statement, will be legally issued, fully paid and nonassessable. This opinion is rendered to you in connection with the Registration Statement and is solely for your benefit. This opinion may not be relied upon by you for any other purpose, or relied upon by any other person, firm, corporation or other entity for any purpose, without our prior written consent. We disclaim any obligation to advise you of any change of law that occurs, or any facts of which we may become aware, after the date of this opinion. Very truly yours, /s/ Heller Ehrman LLP ---------------------- Heller Ehrman LLP EX-10 3 ex10-4a.txt EX-10.4 EXHIBIT 10.4 ALPHA INNOTECH CORP. 1999 STOCK OPTION PLAN, AS AMENDED INCENTIVE STOCK OPTION AGREEMENT (A) Name of Optionee: (B) Grant Date: (C) Number of Shares: (D) Exercise Price: (E) Vesting Base Date: (F) Effective Date: THIS INCENTIVE STOCK OPTION AGREEMENT (the "Agreement"), is made and entered into as of the date set forth in Item F above (the "Effective Date") between Alpha Innotech Corp., a Delaware corporation (the "Company"), and the person named in Item A above ("Optionee"). THE PARTIES AGREE AS FOLLOWS: 1. GRANT OF OPTION; VESTING BASE DATE. 1.1 GRANT. The Company hereby grants to Optionee pursuant to the Company's 1999 Stock Option Plan, as amended (the "PLAN"), a copy of which is attached to this Agreement as Exhibit 1, an incentive stock option (the "ISO") to purchase all or any part of an aggregate of the number of shares (the "ISO SHARES") of the Company's Common Stock (as defined in the Plan) listed in Item C above on the terms and conditions set forth herein and in the Plan, the terms and conditions of the Plan being hereby incorporated into this Agreement by reference. 1.2 VESTING BASE DATE. The parties hereby establish the date set forth in Item E above as the Vesting Base Date (as defined in Section 5.1 below). 2. EXERCISE PRICE. The exercise price for purchase of each share of Common Stock covered by this ISO shall be the price set forth in Item D above. 3. TERM. Unless otherwise specified on Exhibit 3 attached hereto, if any (the absence of such exhibit indicating that no such exhibit was intended), this ISO shall expire as provided in Section 6.1.12 of the Plan. 4. ADJUSTMENT OF ISOS. The Company shall adjust the number and kind of shares and the exercise price thereof in certain circumstances in accordance with the provisions of Section 6.1.1 of the Plan. 1 5. EXERCISE OF OPTIONS. 5.1 VESTING; TIME OF EXERCISE. This ISO shall be exercisable according to the schedule set forth on Exhibit 5.1 attached hereto. Such schedule shall commence as of the date set forth in Item (E) above (the "VESTING BASE DATE"). 5.2 EXERCISE AFTER TERMINATION OF STATUS AS AN EMPLOYEE, DIRECTOR OR CONSULTANT. In the event of termination of Optionee's continuous status as an employee, director or consultant, this ISO may be exercised only in accordance with the provisions of Section 6.1.7 of the Plan; provided, however, that in the event of termination of Optionee's continuous status as an employee, director or consultant for any reason other than death or disability, this ISO may be exercised in whole or in part at any time within thirty days of the date of such termination (but in no event after the Expiration Date, as such term is defined in the Plan). 5.3 MANNER OF EXERCISE. Optionee may exercise this ISO, or any portion of this ISO, by giving written notice to the Company at its principal executive office, to the attention of the officer of the Company designated by the Plan Administrator, accompanied by a copy of the 1999 Stock Option Plan Stock Purchase Agreement in substantially the form attached hereto as Exhibit 5.3 executed by Optionee (or at the option of the Company such other form of stock purchase agreement as shall then be acceptable to the Company), payment of the exercise price and payment of any applicable withholding or employment taxes. The date the Company receives written notice of an exercise hereunder accompanied by payment will be considered as the date this ISO was exercised. 5.4 PAYMENT. Except as provided in Exhibit 5.4 attached hereto, if any (the absence of such exhibit indicating that no exhibit was intended), payment may be made for ISO Shares purchased at the time written notice of exercise of the ISO is given to the Company, by delivery of cash or check or other method set forth in Section 6.1.6 of the Plan. Any applicable taxes must be paid in cash or by other method permitted by the Plan Administrator as set forth in Section 6.1.9 of the Plan. The proceeds of any payment shall constitute general funds of the Company. 5.5 DELIVERY OF CERTIFICATE. Promptly after receipt of written notice of exercise of the ISO, the Company shall, without stock issue or transfer taxes to the Optionee or other person entitled to exercise, deliver to the Optionee or other person a certificate or certificates for the requisite number of ISO Shares or shall register the Optionee as a stockholder on the books of the Company. An Optionee or transferee of an Optionee shall not have any privileges as a stockholder with respect to any ISO Shares covered by the ISO until the date of issuance of a stock certificate or, if applicable, such registration. 2 6. NONASSIGNABILITY OF ISO. This ISO is not assignable or transferable by Optionee except by will or by the laws of descent and distribution. During the life of Optionee, the ISO is exercisable only by the Optionee. Any attempt to assign, pledge, transfer, hypothecate or otherwise dispose of this ISO in a manner not herein permitted, and any levy of execution, attachment, or similar process on this ISO, shall be null and void. 7. COMPANY'S RIGHT OF REPURCHASE UPON TERMINATION OF EMPLOYMENT. The ISO Shares arising from exercise of this ISO shall be subject to a right of repurchase in favor of the Company (the "RIGHT OF REPURCHASE") to the extent set forth on Exhibit 7 attached hereto (the absence of such exhibit indicating that no such exhibit was intended and that the ISO shall be subject to the limitations set forth on Exhibit 5.1). If the Optionee's employment with the Company terminates before the Right of Repurchase lapses in accordance with Exhibit 7, the Company may purchase ISO Shares subject to the Right of Repurchase (either by payment of cash or by cancellation of purchase money indebtedness) for an amount equal to the price the Optionee paid for such ISO Shares (exclusive of any taxes paid upon acquisition of the stock) by giving notice at any time within the later of (a) 30 days after the acquisition of the ISO Shares upon option exercise, or (b) 90 days after such termination of employment that the Company is exercising its right of repurchase. The Company shall include with such notice payment in full in cash or by evidence of cancellation of purchase money indebtedness. The Optionee may not dispose of or transfer ISO Shares while such shares are subject to the Right of Repurchase and any such attempted transfer shall be null and void. 8. RESTRICTION ON ISSUANCE OF SHARES. 8.1 LEGALITY OF ISSUANCE. The Company shall not be obligated to sell or issue any ISO Shares pursuant to this Agreement if such sale or issuance, in the opinion of the Company and the Company's counsel, might constitute a violation by the Company of any provision of law, including without limitation the provisions of the Securities Act. 8.2 REGISTRATION OR QUALIFICATION OF SECURITIES. The Company may, but shall not be required to, register or qualify the sale of this ISO or any ISO Shares under the Securities Act or any other applicable law. The Company shall not be obligated to take any affirmative action in order to cause the grant or exercise of this option or the issuance or sale of any ISO Shares pursuant thereto to comply with any law. 9. RESTRICTION ON TRANSFER. Regardless whether the sale of the ISO Shares has been registered under the Securities Act or has been registered or qualified under the securities laws of any state, the Company may impose restrictions upon the sale, pledge, or other transfer of ISO Shares (including the placement of appropriate legends on stock certificates) if, in the judgment of the Company and the Company's counsel, such restrictions are necessary or desirable in order to achieve compliance with the provisions 3 of the Securities Act, the securities laws of any state, or any other law, or if the Company does not desire to have a trading market develop for its securities. 10. STOCK CERTIFICATE. Stock certificates evidencing ISO Shares may bear such restrictive legends as the Company and the Company's counsel deem necessary or advisable under applicable law or pursuant to this Agreement. 11. DISQUALIFYING DISPOSITIONS. If stock acquired by exercise of this ISO is disposed of within two years after the Effective Date or within one year after the date of such exercise (as determined under Section 5.3 of this Agreement), the Optionee immediately prior to the disposition shall promptly notify the Company in writing of the date and terms of the disposition and shall provide such other information regarding the disposition as the Company may reasonably require. 12. TAX ADVICE. The Company has made no warranties or representations to Purchaser with respect to the income tax consequences of the transactions contemplated by the agreement pursuant to which the ISO Shares will be purchased and Purchaser is in no manner relying on the Company or its representatives for an assessment of such tax consequences. 13. EMPLOYMENT OR CONSULTING RELATIONSHIP. Nothing in this Agreement shall interfere with or limit in any way the right of the Company or of any of its Affiliates to terminate the Optionee's employment or consulting at any time, nor confer upon the Optionee any right to continue in the employ of, or consult with, the Company or any of its Affiliates. 14. ASSIGNMENT; BINDING EFFECT. Subject to the limitations set forth in this Agreement, this Agreement shall be binding upon and inure to the benefit of the executors, administrators, heirs, legal representatives, and successors of the parties hereto; provided, however, that except as otherwise provided in this Agreement, Optionee may not assign any of Optionee's rights under this Agreement. 15. DAMAGES. Optionee shall be liable to the Company for all costs and damages, including incidental and consequential damages, resulting from a disposition of ISO Shares which is not in conformity with the provisions of this Agreement. 16. GOVERNING LAW. This Agreement shall be governed by, and construed in accordance with, the laws of the State of California excluding those laws that direct the application of the laws of another jurisdiction. 17. NOTICES. All notices and other communications under this Agreement shall be in writing. Unless and until the Optionee is notified in writing to the contrary, all 4 notices, communications, and documents directed to the Company and related to the Agreement, if not delivered by hand, shall be mailed, addressed as follows: Alpha Innotech Corp. 2401 Merced Street San Leandro, California 94577 Attention: President Unless and until the Company is notified in writing to the contrary, all notices, communications, and documents intended for the Optionee and related to this Agreement, if not delivered by hand, shall be mailed to Optionee's last known address as shown on the Company's books. Notices and communications shall be mailed by first class mail, postage prepaid; documents shall be mailed by registered mail, return receipt requested, postage prepaid. All mailings and deliveries related to this Agreement shall be deemed received when actually received, if by hand delivery, and two business days after mailing, if by mail. 18. ARBITRATION. Any and all disputes or controversies arising out of this Agreement shall be finally settled by arbitration conducted in San Francisco, California, in accordance with the then existing rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction thereof; provided that nothing in this Section 18 shall prevent a party from applying to a court of competent jurisdiction to obtain temporary relief pending resolution of the dispute through arbitration. The parties hereby agree that service of any notices in the course of such arbitration at their respective addresses as provided for in Section 17 shall be valid and sufficient. 19. ENTIRE AGREEMENT. Company and Optionee agree that this Agreement (including its attached Exhibits) is the complete and exclusive statement between Company and Optionee regarding its subject matter and supersedes all prior proposals, communications, and agreements of the parties (including any letter from the Company to Optionee setting forth proposed terms of employment), whether oral or written, regarding the grant of stock options or issuances of ISO Shares to Optionee. 5 IN WITNESS WHEREOF, the parties have executed this Incentive Stock Option Agreement as of the Effective Date. ALPHA INNOTECH CORP. By: _______________________________ Title: _______________________________ The Optionee hereby accepts and agrees to be bound by all of the terms and conditions of this Agreement and the Plan. ---------------------------------------- Optionee Optionee's spouse indicates by the execution of this Incentive Stock Option Agreement his or her consent to be bound by the terms thereof as to his or her interests, whether as community property or otherwise, if any, in the option granted hereunder, and in any ISO Shares purchased pursuant to this Agreement. ---------------------------------------- Optionee's Spouse 6 EX-23 4 ex23-1c.txt EX-23.1 EXHIBIT 23.1 CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM We consent to the incorporation by reference in Registration Statement (Form S-8) pertaining to the Amended and Restated 1999 Stock Option Plan, the 2001 Milestone Stock Option Plan, and the Non-Qualified Stock Option Agreement of our report dated March 28, 2006, with respect to the consolidated financial statements of Alpha Innotech Corp. included in its Annual Report (Form 10-KSB) for the year ended December 31, 2005, filed with the Securities and Exchange Commission. /s/ Rowbotham & Company LLP San Francisco, California April 6, 2006 -----END PRIVACY-ENHANCED MESSAGE-----