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