SEC Company Response from ALPHA INNOTECH CORP (CIK 0000830736) — Jul 7, 2005
ALPHA INNOTECH CORP (CIK 0000830736)
Date: July 7, 2005 · CIK: 0000830736 · Accession: 0001170918-05-000456
AI Filing Summary & Sentiment
File numbers found in text: 001-14257
Referenced dates: June 14, 2005
Letter
RE: XTRANA, INC. RESPONSES TO STAFF COMMENTS OF JUNE 14, 2005 WITH RESPECT TO:
[STUBBS ALDERTON & MARKILES LLP LETTERHEAD]
July 7, 2005
VIA EDGAR AND OVERNIGHT DELIVERY
Securities and Exchange Commission Division of Corporation Finance Mail Stop 6010 Washington, D.C. 20549
PRELIMINARY PROXY STATEMENT ON SCHEDULE 14A FILED ON MAY 16, 2005 FILE NO. 001-14257
FORM 10-K FOR THE YEAR ENDED DECEMBER 31, 2004 FILE NO. 001-14257
Ladies and Gentlemen:
On behalf of Xtrana, Inc. (the "COMPANY"), we have enclosed for filing one copy with exhibits of (i) Amendment No. 1 to Preliminary Proxy Statement on Schedule 14A (the "AMENDED PROXY"), and (ii) Amendment No. 1 to Form 10-K for the Year Ended December 31, 2004 (the "10-K AMENDMENT").
In addition to filing the Amendments, we hereby provide supplementally the following responses in reply to the Staff's comment letter, dated June 14, 2005 (the "COMMENT LETTER"). The factual information provided herein relating to the Company has been made available to us by the Company and by Alpha Innotech Corporation ("ALPHA INNOTECH"). Paragraph numbering used for each supplemental response set forth below corresponds to the numbering used in the Comment Letter.
SCHEDULE 14A GENERAL GENERAL
1. IN YOUR AMENDED FILING, UPDATE ALL INFORMATION TO THE LATEST DATE PRACTICABLE.
-------------------------------------------------------------------------------- 15821 Ventura Boulevard, Suite 525, Encino, California 91436 office > 818.444.4500 fax > 818.444.4520 www.biztechlaw.com
<PAGE>
Securities and Exchange Commission July 7, 2005 Page 2
The Company has updated all information in the Amended Proxy to the latest date practicable.
2. PLEASE NOTE THAT YOU ARE REQUIRED TO FILE WITH THE COMMISSION ANY WRITTEN INSTRUCTIONS, SCRIPTS, AND OUTLINES THAT WILL BE USED BY ANY PERSON THAT SOLICITS PROXIES ON BEHALF OF XTRANA, INC., THROUGH PERSONAL INTERVIEW, TELEPHONE, OR TELEGRAM, AND ALL OTHER SOLICITING MATERIAL THAT WILL BE FURNISHED TO XTRANA STOCKHOLDERS. SEE RULES 14A-6(B) AND (C) OF THE EXCHANGE ACT OF 1934.
The Company acknowledges the Staff's comment. The Company has confirmed that no such documents exist at this time. The Company will comply with the requirements of Rules 14a-6(b) and (c) of Securities Exchange Act of 1934 by filing all materials used to aid in the solicitation of proxies.
3. PLEASE DESCRIBE THE INTERESTS OF YOUR OFFICERS, DIRECTORS AND ANY RELEVANT STOCKHOLDERS IN ANY MATTER TO BE ACTED UPON AS REQUIRED BY ITEM 5 OF SCHEDULE A. FOR EXAMPLE, PLEASE EXPLAIN IF ANY OF YOUR OFFICERS OR DIRECTORS HAVE INTERESTS IN YOUR PROPOSED REVERSE ACQUISITION OF ALPHA INNOTECH CORPORATION THAT ARE DIFFERENT FROM, OR IN ADDITION TO, THE INTERESTS OF THE STOCKHOLDERS.
The Company has included additional disclosure on page 28 of the Amended Proxy in response to the Staff's comments.
4. PLEASE SUPPLEMENTALLY PROVIDE US WITH COPIES OF YOUR BOARD BOOKS AND ANY OTHER MATERIALS PREPARED BY THE MENTOR GROUP, INC. THAT WERE PROVIDED TO THE BOARD OF DIRECTORS, INCLUDING DRAFTS OF FAIRNESS OPINIONS PROVIDED TO THE BOARD OF DIRECTORS, AND ANY SUMMARIES OF PRESENTATIONS MADE TO THE BOARD OF DIRECTORS, WE MAY HAVE FURTHER COMMENT ON YOUR DISCLOSURE ONCE WE HAVE HAD THE OPPORTUNITY TO REVIEW THESE MATERIALS.
The Mentor Group, Inc. did not provide the Company or its Board of Directors with any materials other than the final fairness opinion and the disclosure included in the Proxy Statement.
5. YOU HAVE INDICATED ON PAGE 51 THAT SHAREHOLDERS DO NOT HAVE DISSENTER'S RIGHTS WITH RESPECT TO THE AMENDMENT TO THE CERTIFICATE OF INCORPORATION AND THE REVERSE STOCK SPLIT. PLEASE REVISE TO DISCLOSE THAT SHAREHOLDERS ALSO DO NOT HAVE DISSENTER'S RIGHTS WITH RESPECT TO THE MERGER, IF ACCURATE. IF THEY DO HAVE DISSENTER'S RIGHTS WITH RESPECT TO THE MERGER, PLEASE DESCRIBE THE STATUTORY PROCEDURE REQUIRED TO BE FOLLOWED BY DISSENTING SHAREHOLDERS IN ORDER TO PERFECT RIGHTS OF APPRAISAL. THIS DISCUSSION SHOULD ADDRESS WHETHER A SHAREHOLDER'S FAILURE TO VOTE WILL CONSTITUTE A WAIVER OF APPRAISAL RIGHTS.
<PAGE>
Securities and Exchange Commission July 7, 2005 Page 3
The Company has revised the Amended Proxy, on page 28, in response to the Staff's comments.
6. PLEASE PROVIDE US WITH AN UPDATE ON THE STATUS OF OBTAINING A PERMIT FROM THE CALIFORNIA DEPARTMENT OF CORPORATIONS.
As discussed with the Staff by telephone, the California Department of Corporations has denied the Company's request for a fairness hearing in connection with this transaction. This refusal was not related to this specific transaction, but rather was due a policy maintained by the Department of Corporations of denying all requests for fairness hearings involving transactions with public shell companies. As a result, the Company will not be able to conduct a fairness hearing before the California Department of Corporations.
As a result, the Company and Alpha Innotech have agreed that the merger transaction will be conducted as a private placement transaction pursuant to Rule 506 of Regulation D. The Company has made appropriate revisions to the Amended Proxy to reflect this change in the transaction.
SUMMARY, PAGE 1
7. PLEASE REVISE THE SUMMARY TERM SHEET TO INCLUDE CROSS REFERENCES TO THE MORE DETAILED DISCLOSURE IN YOUR DOCUMENT.
The Company has revised the summary term sheet in the Amended Proxy in response to the Staff's comments.
PROPOSAL NO. 1; ELECTION OF DIRECTORS, PAGE 8
8. PLEASE NOTE THAT ITEM 401 OF REGULATION S-K REQUIRES A BRIEF DESCRIPTION OF THE BUSINESS EXPERIENCE OF YOUR OFFICERS AND DIRECTORS DURING EACH OF THE LAST FIVE YEARS. PLEASE REVISE THIS SECTION TO INCLUDE THE APPLICABLE DATES FOR JAMES CHAMBERLAIN, DOUGLAS AYER, AND JAMES MAHONY.
The Company has revised the biographical information in the Amended Proxy to address the Staff's comments.
9. PLEASE DISCLOSE WHETHER YOU MAINTAIN A CHARTER FOR THE DIRECTOR NOMINATION PROCESS PURSUANT TO ITEM 7 OF SCHEDULE 14A, IF SO, PLEASE INCLUDE A CURRENT COPY OF THE CHARTER AS AN APPENDIX TO THE PRELIMINARY PROXY STATEMENT. IF NOT, PLEASE SO STATE.
The Company's Board of Directors does not maintain a charter for the director nomination process. The Amended Proxy has been revised to disclose this fact.
<PAGE>
Securities and Exchange Commission July 7, 2005 Page 4
PROPOSAL NO. 2: THE MERGER, PAGE 15 GENERAL
10. IN ADDITION, PLEASE DISCLOSE WHETHER YOU HAVE ANY PLANS TO ISSUE THE COMMON STOCK RESULTING FROM THE REVERSE STOCK SPLIT OTHER THAN FOR ISSUANCE PURSUANT TO THE MERGER. WE MAY HAVE FURTHER COMMENTS.
The Company has included additional disclosure in the Amended Proxy in response to the Staff's comments. We note supplementally that the Company does not have any plans to effect the reverse stock unless the Merger is completed.
BACKGROUND OF THE MERGER, PAGE 15
11. PLEASE REVISE TO PROVIDE A DETAILED DISCUSSION OF ALL MEETINGS HELD TO DISCUSS THE SEARCH FOR A MERGER CANDIDATE AND THE MERGER WITH ALPHA INNOTECH. THE DISCUSSION SHOULD ADDRESS WHETHER OTHER COMPANIES WERE CONSIDERED, WHETHER A SEARCH FOR A MERGER CANDIDATE WAS CONDUCTED AND IF A SEARCH WERE CONDUCTED WHAT THE SEARCH ENTAILED. THE DISCUSSION OF EACH MEETING RELATING TO THE MERGER WITH ALPHA INNOTECH SHOULD INCLUDE INFORMATION AS TO WHEN THE MEETING TOOK PLACE, WHO INITIATED THE CONTACT, WHO WAS PRESENT, THE ISSUES WERE DISCUSSED AND ANY DECISIONS THAT WERE MADE. IN ACCORDANCE WITH THE REQUIREMENTS OF INSTRUCTION 7(B)(7) OF ITEM 14 OF SCHEDULE 14A AND ITEM 1005(B) OF REGULATION M-A, YOU SHOULD DESCRIBE IN DETAIL THE NATURE AND SUBSTANCE OF THE DELIBERATIONS CONDUCTED AT MEETINGS. THE DISCLOSURE SHOULD PROVIDE SHAREHOLDERS WITH AN UNDERSTANDING OF HOW, WHEN AND WHY THE TERMS OF THE PROPOSED TRANSACTION EVOLVED DURING THE COURSE OF THE BOARD'S DELIBERATIONS IN THE PERIOD BEGINNING IN SEPTEMBER 2004 AND ENDING WITH THE EXECUTION OF THE AGREEMENT AND PLAN OF MERGER IN DECEMBER 2004. BROAD GENERALIZATIONS ABOUT TOPICS COVERED DURING THESE MEETINGS ARE NOT SUFFICIENT.
The Company has included additional disclosure in the Amended Proxy to address the Staff's comments.
12. WE NOTE YOUR DISCLOSURE ON PAGE 21 THAT THE BOARD IDENTIFIED AND INVESTIGATED A NUMBER OF POTENTIAL OPPORTUNITIES. PLEASE REVISE THIS DISCUSSION TO PROVIDE MORE DETAILS ABOUT THE OTHER MERGER PARTNERS THAT WERE CONSIDERED. YOU SHOULD INCLUDE A BRIEF DESCRIPTION OF THE OTHER CANDIDATES, WHETHER THERE WERE ANY DISCUSSIONS OR NEGOTIATIONS WITH THESE PARTIES, AND WHY YOU DECIDED TO PURSUE THIS MERGER INSTEAD. WE MAY HAVE FURTHER COMMENTS.
The Company has included additional disclosure in the Amended Proxy to address the Staff's comments.
<PAGE>
Securities and Exchange Commission July 7, 2005 Page 5
13. PLEASE DESCRIBE IN REASONABLE DETAIL HOW THE CONSIDERATION WAS DETERMINED AND NEGOTIATED.
The Company has included additional disclosure in the Amended Proxy to address the Staff's comments.
14. PLEASE EXPLAIN WHY THE BOARD DETERMINED ADUROMED CORPORATION TO NOT BE SUITABLE AS A TARGET COMPANY FOR A MERGER. PLEASE DESCRIBE WHAT SPECIFIC FACTORS ON PAGE 16 THEY FAILED TO SATISFY.
The Company has included additional disclosure in the Amended Proxy to address the Staff's comments.
15. WE NOTE YOUR STATEMENT THAT THE BOARD OF DIRECTORS DETERMINED THAT ALPHA INNOTECH MET THE CRITERIA ESTABLISHED BY THE BOARD OF DIRECTORS IN ITS REVIEW OF POTENTIAL MERGER PARTNERS. IS THE "CRITERIA" THAT YOU REFER TO THE SAME AS THE FACTORS THAT ARE DISCLOSED IN THE PARAGRAPH PRECEDING THIS STATEMENT? PLEASE EXPLAIN HOW THE BOARD DETERMINED THAT ALPHA INNOTECH MET THESE CRITERIA.
The Company has included additional disclosure in the Amended Proxy to address the Staff's comments.
16. PLEASE EXPAND YOUR DISCLOSURE TO EXPLAIN THE AMENDMENT TO THE MERGER AGREEMENT. IDENTIFY THE PROVISIONS THAT WERE REVISED, THE EFFECTS OF THESE REVISIONS AND THE CIRCUMSTANCES REQUIRING THE REVISIONS.
The Company has included additional disclosure in the Amended Proxy to address the Staff's comments.
THE MERGER AGREEMENT, PAGE 16
17. PLEASE REVISE YOUR STATEMENT THAT THE SUMMARY "DOES NOT PURPORT TO BE COMPLETE" TO CLARIFY THAT IT ADDRESSES ALL MATERIAL TERMS OF THE AGREEMENT AND ENSURE THAT IT DOES SO.
The Company has revised the Amended Proxy to address the Staff's comments.
18. PLEASE REVISE THE DISCUSSION OF THE LOAN FROM ALEXANDRIA TO IDENTIFY THE FIRM THAT ARRANGED THE FINANCING. IS THIS THE PARTY THAT RECEIVED A WARRANT TO PURCHASE 900,000 SHARES OF COMMON STOCK? IF NOT, IDENTIFY THE PARTY THAT RECEIVED THE WARRANT. DISCLOSE THE COMPENSATION THE FIRM RECEIVED FOR ARRANGING THE FINANCING.
The Amended Proxy includes revised disclosure regarding the loan from Alexandria.
<PAGE>
Securities and Exchange Commission July 7, 2005 Page 6
19. ARE THERE ANY CIRCUMSTANCES UNDER WHICH ALPHA INNOTECH WOULD BE REQUIRED TO PAY A TERMINATION FEE?
There are no circumstances under which Alpha Innotech would be required to pay a termination fee under the Merger Agreement.
MERGER CONSIDERATION, PAGE 21
20. PLEASE EXPLAIN WHY YOU HAVE NOT INCLUDED AS PART OF THE MERGER CONSIDERATION THE CASH DELIVERY OF APPROXIMATELY $2.2 MILLION AND THE $500,000 ADVANCE PURSUANT TO THE MERGER AGREEMENT AS DISCLOSED ON PAGE 23. TO THE EXTENT YOU HAVE NOT INCLUDED ALL TERMS AND PROVISIONS, PLEASE DETAIL CLEARLY ALL THE CONSIDERATION FOR THE TRANSACTION. WE MAY HAVE FURTHER COMMENTS.
The Company did not include the cash delivery as part of the merger consideration because it did characterize the cash as "consideration" but rather as a minimum amount of capital that will be available for the combined company following the closing of the transaction. The cash is required to be available at closing for operations of the company following the closing, and will not be paid out as consideration to the Alpha Innotech shareholders. However, the Company has revised the Amended Proxy to refer to the minimum closing date cash requirement and included additional disclosure regarding the $500,000 advance.
BOARD OF DIRECTORS' REASONS FOR THE MERGER, PAGE 21
21. PLEASE BALANCE THE DISCUSSION OF XTRANA'S REASONS FOR THE TRANSACTION WITH A LIST OF ADVERSE FACTORS THAT WERE CONSIDERED. YOUR BRIEF REFERENCE TO CERTAIN RISKS CONSIDERED ON PAGE 22 IS NOT SUFFICIENT. THIS DISCUSSION SHOULD ADDRESS NOT ONLY THE DIFFICULTIES ASSOCIATED WITH THE ACQUISITION AGREEMENT AND INTEGRATING THE COMBINED COMPANY, BUT ALSO ANY ISSUES REGARDING ALPHA INNOTECH ITSELF THAT XTRANA'S BOARD CONSIDERED TO BE ADVERSE.
The Company has included additional disclosure in the Amended Proxy to address the Staff's comments.
22. PLEASE EXPAND THE FACTORS CONSIDERED BY THE BOARD OF XTRANA IN APPROVING THE AGREEMENT AND PLAN OF MERGER TO DISCUSS EACH ITEMIZED FACTOR IN REASONABLE DETAIL SO THAT THE READER UNDERSTANDS THE BOARD'S THOUGHT PROCESS. EACH OF THE MATERIAL REASONS FOR THE BOARD'S DECISION, BOTH POSITIVE AND NEGATIVE, SHOULD BE EXPANDED SO THAT THE READER UNDERSTANDS THE NATURE OF THE FACTORS CONSIDERED, THE BOARD'S CONCLUSIONS AND OBSERVATIONS ABOUT SUCH FACTORS, AND HOW SUCH INFORMATION INFLUENCED THE BOARD'S DELIBERATIONS. FOR EXAMPLE, TO BE MEANINGFUL FOR SHAREHOLDERS, THE LIST OF FACTORS ON PAGE 16, SHOULD ALSO DISCUSS WHAT
<PAGE>
Securities and Exchange Commission July 7, 2005 Page 7
CONCLUSIONS THE BOARD REACHED ABOUT THE TWO COMPANIES' COMPATIBILITY AND HOW EACH FACTOR WEIGHED IN FAVOR OF APPROVING THE MERGER.
The Company has included additional disclosure in the Amended Proxy to address the Staff's comments.
23. PLEASE PROVIDE US SUPPLEMENTAL1Y WITH COPIES OF ANY NON-PUBLIC INFORMATION -- DOCUMENTS, FINANCIAL FORECASTS, PROJECTIONS AND PRESENTATIONS -- USED BY OR ON BEHALF OF XTRANA IN THE MERGER NEGOTIATIONS. WE MAY HAVE ADDITIONAL COMMENTS.
The Company did not provide any presentations, forecasts or other non-public information in connection with the merger discussions
Show Raw Text
<DOCUMENT>
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<SEQUENCE>1
<FILENAME>filename1.txt
<TEXT>
[STUBBS ALDERTON & MARKILES LLP LETTERHEAD]
July 7, 2005
VIA EDGAR AND OVERNIGHT DELIVERY
Securities and Exchange Commission
Division of Corporation Finance
Mail Stop 6010
Washington, D.C. 20549
RE: XTRANA, INC.
RESPONSES TO STAFF COMMENTS OF JUNE 14, 2005 WITH RESPECT TO:
PRELIMINARY PROXY STATEMENT ON SCHEDULE 14A
FILED ON MAY 16, 2005
FILE NO. 001-14257
FORM 10-K FOR THE YEAR ENDED DECEMBER 31, 2004
FILE NO. 001-14257
Ladies and Gentlemen:
On behalf of Xtrana, Inc. (the "COMPANY"), we have enclosed for filing
one copy with exhibits of (i) Amendment No. 1 to Preliminary Proxy Statement on
Schedule 14A (the "AMENDED PROXY"), and (ii) Amendment No. 1 to Form 10-K for
the Year Ended December 31, 2004 (the "10-K AMENDMENT").
In addition to filing the Amendments, we hereby provide supplementally
the following responses in reply to the Staff's comment letter, dated June 14,
2005 (the "COMMENT LETTER"). The factual information provided herein relating to
the Company has been made available to us by the Company and by Alpha Innotech
Corporation ("ALPHA INNOTECH"). Paragraph numbering used for each supplemental
response set forth below corresponds to the numbering used in the Comment
Letter.
SCHEDULE 14A GENERAL
GENERAL
1. IN YOUR AMENDED FILING, UPDATE ALL INFORMATION TO THE LATEST DATE
PRACTICABLE.
--------------------------------------------------------------------------------
15821 Ventura Boulevard, Suite 525, Encino, California 91436
office > 818.444.4500 fax > 818.444.4520 www.biztechlaw.com
<PAGE>
Securities and Exchange Commission
July 7, 2005
Page 2
The Company has updated all information in the Amended Proxy to the
latest date practicable.
2. PLEASE NOTE THAT YOU ARE REQUIRED TO FILE WITH THE COMMISSION ANY
WRITTEN INSTRUCTIONS, SCRIPTS, AND OUTLINES THAT WILL BE USED BY ANY
PERSON THAT SOLICITS PROXIES ON BEHALF OF XTRANA, INC., THROUGH
PERSONAL INTERVIEW, TELEPHONE, OR TELEGRAM, AND ALL OTHER SOLICITING
MATERIAL THAT WILL BE FURNISHED TO XTRANA STOCKHOLDERS. SEE RULES
14A-6(B) AND (C) OF THE EXCHANGE ACT OF 1934.
The Company acknowledges the Staff's comment. The Company has confirmed
that no such documents exist at this time. The Company will comply with the
requirements of Rules 14a-6(b) and (c) of Securities Exchange Act of 1934 by
filing all materials used to aid in the solicitation of proxies.
3. PLEASE DESCRIBE THE INTERESTS OF YOUR OFFICERS, DIRECTORS AND ANY
RELEVANT STOCKHOLDERS IN ANY MATTER TO BE ACTED UPON AS REQUIRED BY
ITEM 5 OF SCHEDULE A. FOR EXAMPLE, PLEASE EXPLAIN IF ANY OF YOUR
OFFICERS OR DIRECTORS HAVE INTERESTS IN YOUR PROPOSED REVERSE
ACQUISITION OF ALPHA INNOTECH CORPORATION THAT ARE DIFFERENT FROM, OR
IN ADDITION TO, THE INTERESTS OF THE STOCKHOLDERS.
The Company has included additional disclosure on page 28 of the
Amended Proxy in response to the Staff's comments.
4. PLEASE SUPPLEMENTALLY PROVIDE US WITH COPIES OF YOUR BOARD BOOKS AND
ANY OTHER MATERIALS PREPARED BY THE MENTOR GROUP, INC. THAT WERE
PROVIDED TO THE BOARD OF DIRECTORS, INCLUDING DRAFTS OF FAIRNESS
OPINIONS PROVIDED TO THE BOARD OF DIRECTORS, AND ANY SUMMARIES OF
PRESENTATIONS MADE TO THE BOARD OF DIRECTORS, WE MAY HAVE FURTHER
COMMENT ON YOUR DISCLOSURE ONCE WE HAVE HAD THE OPPORTUNITY TO REVIEW
THESE MATERIALS.
The Mentor Group, Inc. did not provide the Company or its Board of
Directors with any materials other than the final fairness opinion and the
disclosure included in the Proxy Statement.
5. YOU HAVE INDICATED ON PAGE 51 THAT SHAREHOLDERS DO NOT HAVE DISSENTER'S
RIGHTS WITH RESPECT TO THE AMENDMENT TO THE CERTIFICATE OF
INCORPORATION AND THE REVERSE STOCK SPLIT. PLEASE REVISE TO DISCLOSE
THAT SHAREHOLDERS ALSO DO NOT HAVE DISSENTER'S RIGHTS WITH RESPECT TO
THE MERGER, IF ACCURATE. IF THEY DO HAVE DISSENTER'S RIGHTS WITH
RESPECT TO THE MERGER, PLEASE DESCRIBE THE STATUTORY PROCEDURE REQUIRED
TO BE FOLLOWED BY DISSENTING SHAREHOLDERS IN ORDER TO PERFECT RIGHTS OF
APPRAISAL. THIS DISCUSSION SHOULD ADDRESS WHETHER A SHAREHOLDER'S
FAILURE TO VOTE WILL CONSTITUTE A WAIVER OF APPRAISAL RIGHTS.
<PAGE>
Securities and Exchange Commission
July 7, 2005
Page 3
The Company has revised the Amended Proxy, on page 28, in response to
the Staff's comments.
6. PLEASE PROVIDE US WITH AN UPDATE ON THE STATUS OF OBTAINING A PERMIT
FROM THE CALIFORNIA DEPARTMENT OF CORPORATIONS.
As discussed with the Staff by telephone, the California Department of
Corporations has denied the Company's request for a fairness hearing in
connection with this transaction. This refusal was not related to this specific
transaction, but rather was due a policy maintained by the Department of
Corporations of denying all requests for fairness hearings involving
transactions with public shell companies. As a result, the Company will not be
able to conduct a fairness hearing before the California Department of
Corporations.
As a result, the Company and Alpha Innotech have agreed that the merger
transaction will be conducted as a private placement transaction pursuant to
Rule 506 of Regulation D. The Company has made appropriate revisions to the
Amended Proxy to reflect this change in the transaction.
SUMMARY, PAGE 1
7. PLEASE REVISE THE SUMMARY TERM SHEET TO INCLUDE CROSS REFERENCES TO THE
MORE DETAILED DISCLOSURE IN YOUR DOCUMENT.
The Company has revised the summary term sheet in the Amended Proxy in
response to the Staff's comments.
PROPOSAL NO. 1; ELECTION OF DIRECTORS, PAGE 8
8. PLEASE NOTE THAT ITEM 401 OF REGULATION S-K REQUIRES A BRIEF
DESCRIPTION OF THE BUSINESS EXPERIENCE OF YOUR OFFICERS AND DIRECTORS
DURING EACH OF THE LAST FIVE YEARS. PLEASE REVISE THIS SECTION TO
INCLUDE THE APPLICABLE DATES FOR JAMES CHAMBERLAIN, DOUGLAS AYER, AND
JAMES MAHONY.
The Company has revised the biographical information in the Amended
Proxy to address the Staff's comments.
9. PLEASE DISCLOSE WHETHER YOU MAINTAIN A CHARTER FOR THE DIRECTOR
NOMINATION PROCESS PURSUANT TO ITEM 7 OF SCHEDULE 14A, IF SO, PLEASE
INCLUDE A CURRENT COPY OF THE CHARTER AS AN APPENDIX TO THE PRELIMINARY
PROXY STATEMENT. IF NOT, PLEASE SO STATE.
The Company's Board of Directors does not maintain a charter for the
director nomination process. The Amended Proxy has been revised to disclose this
fact.
<PAGE>
Securities and Exchange Commission
July 7, 2005
Page 4
PROPOSAL NO. 2: THE MERGER, PAGE 15
GENERAL
10. IN ADDITION, PLEASE DISCLOSE WHETHER YOU HAVE ANY PLANS TO ISSUE THE
COMMON STOCK RESULTING FROM THE REVERSE STOCK SPLIT OTHER THAN FOR
ISSUANCE PURSUANT TO THE MERGER. WE MAY HAVE FURTHER COMMENTS.
The Company has included additional disclosure in the Amended Proxy in
response to the Staff's comments. We note supplementally that the Company does
not have any plans to effect the reverse stock unless the Merger is completed.
BACKGROUND OF THE MERGER, PAGE 15
11. PLEASE REVISE TO PROVIDE A DETAILED DISCUSSION OF ALL MEETINGS HELD TO
DISCUSS THE SEARCH FOR A MERGER CANDIDATE AND THE MERGER WITH ALPHA
INNOTECH. THE DISCUSSION SHOULD ADDRESS WHETHER OTHER COMPANIES WERE
CONSIDERED, WHETHER A SEARCH FOR A MERGER CANDIDATE WAS CONDUCTED AND
IF A SEARCH WERE CONDUCTED WHAT THE SEARCH ENTAILED. THE DISCUSSION OF
EACH MEETING RELATING TO THE MERGER WITH ALPHA INNOTECH SHOULD INCLUDE
INFORMATION AS TO WHEN THE MEETING TOOK PLACE, WHO INITIATED THE
CONTACT, WHO WAS PRESENT, THE ISSUES WERE DISCUSSED AND ANY DECISIONS
THAT WERE MADE. IN ACCORDANCE WITH THE REQUIREMENTS OF INSTRUCTION
7(B)(7) OF ITEM 14 OF SCHEDULE 14A AND ITEM 1005(B) OF REGULATION M-A,
YOU SHOULD DESCRIBE IN DETAIL THE NATURE AND SUBSTANCE OF THE
DELIBERATIONS CONDUCTED AT MEETINGS. THE DISCLOSURE SHOULD PROVIDE
SHAREHOLDERS WITH AN UNDERSTANDING OF HOW, WHEN AND WHY THE TERMS OF
THE PROPOSED TRANSACTION EVOLVED DURING THE COURSE OF THE BOARD'S
DELIBERATIONS IN THE PERIOD BEGINNING IN SEPTEMBER 2004 AND ENDING WITH
THE EXECUTION OF THE AGREEMENT AND PLAN OF MERGER IN DECEMBER 2004.
BROAD GENERALIZATIONS ABOUT TOPICS COVERED DURING THESE MEETINGS ARE
NOT SUFFICIENT.
The Company has included additional disclosure in the Amended Proxy to
address the Staff's comments.
12. WE NOTE YOUR DISCLOSURE ON PAGE 21 THAT THE BOARD IDENTIFIED AND
INVESTIGATED A NUMBER OF POTENTIAL OPPORTUNITIES. PLEASE REVISE THIS
DISCUSSION TO PROVIDE MORE DETAILS ABOUT THE OTHER MERGER PARTNERS THAT
WERE CONSIDERED. YOU SHOULD INCLUDE A BRIEF DESCRIPTION OF THE OTHER
CANDIDATES, WHETHER THERE WERE ANY DISCUSSIONS OR NEGOTIATIONS WITH
THESE PARTIES, AND WHY YOU DECIDED TO PURSUE THIS MERGER INSTEAD. WE
MAY HAVE FURTHER COMMENTS.
The Company has included additional disclosure in the Amended Proxy to
address the Staff's comments.
<PAGE>
Securities and Exchange Commission
July 7, 2005
Page 5
13. PLEASE DESCRIBE IN REASONABLE DETAIL HOW THE CONSIDERATION WAS
DETERMINED AND NEGOTIATED.
The Company has included additional disclosure in the Amended Proxy to
address the Staff's comments.
14. PLEASE EXPLAIN WHY THE BOARD DETERMINED ADUROMED CORPORATION TO NOT BE
SUITABLE AS A TARGET COMPANY FOR A MERGER. PLEASE DESCRIBE WHAT
SPECIFIC FACTORS ON PAGE 16 THEY FAILED TO SATISFY.
The Company has included additional disclosure in the Amended Proxy to
address the Staff's comments.
15. WE NOTE YOUR STATEMENT THAT THE BOARD OF DIRECTORS DETERMINED THAT
ALPHA INNOTECH MET THE CRITERIA ESTABLISHED BY THE BOARD OF DIRECTORS
IN ITS REVIEW OF POTENTIAL MERGER PARTNERS. IS THE "CRITERIA" THAT YOU
REFER TO THE SAME AS THE FACTORS THAT ARE DISCLOSED IN THE PARAGRAPH
PRECEDING THIS STATEMENT? PLEASE EXPLAIN HOW THE BOARD DETERMINED THAT
ALPHA INNOTECH MET THESE CRITERIA.
The Company has included additional disclosure in the Amended Proxy to
address the Staff's comments.
16. PLEASE EXPAND YOUR DISCLOSURE TO EXPLAIN THE AMENDMENT TO THE MERGER
AGREEMENT. IDENTIFY THE PROVISIONS THAT WERE REVISED, THE EFFECTS OF
THESE REVISIONS AND THE CIRCUMSTANCES REQUIRING THE REVISIONS.
The Company has included additional disclosure in the Amended Proxy to
address the Staff's comments.
THE MERGER AGREEMENT, PAGE 16
17. PLEASE REVISE YOUR STATEMENT THAT THE SUMMARY "DOES NOT PURPORT TO BE
COMPLETE" TO CLARIFY THAT IT ADDRESSES ALL MATERIAL TERMS OF THE
AGREEMENT AND ENSURE THAT IT DOES SO.
The Company has revised the Amended Proxy to address the Staff's
comments.
18. PLEASE REVISE THE DISCUSSION OF THE LOAN FROM ALEXANDRIA TO IDENTIFY
THE FIRM THAT ARRANGED THE FINANCING. IS THIS THE PARTY THAT RECEIVED A
WARRANT TO PURCHASE 900,000 SHARES OF COMMON STOCK? IF NOT, IDENTIFY
THE PARTY THAT RECEIVED THE WARRANT. DISCLOSE THE COMPENSATION THE FIRM
RECEIVED FOR ARRANGING THE FINANCING.
The Amended Proxy includes revised disclosure regarding the loan from
Alexandria.
<PAGE>
Securities and Exchange Commission
July 7, 2005
Page 6
19. ARE THERE ANY CIRCUMSTANCES UNDER WHICH ALPHA INNOTECH WOULD BE
REQUIRED TO PAY A TERMINATION FEE?
There are no circumstances under which Alpha Innotech would be required
to pay a termination fee under the Merger Agreement.
MERGER CONSIDERATION, PAGE 21
20. PLEASE EXPLAIN WHY YOU HAVE NOT INCLUDED AS PART OF THE MERGER
CONSIDERATION THE CASH DELIVERY OF APPROXIMATELY $2.2 MILLION AND THE
$500,000 ADVANCE PURSUANT TO THE MERGER AGREEMENT AS DISCLOSED ON PAGE
23. TO THE EXTENT YOU HAVE NOT INCLUDED ALL TERMS AND PROVISIONS,
PLEASE DETAIL CLEARLY ALL THE CONSIDERATION FOR THE TRANSACTION. WE MAY
HAVE FURTHER COMMENTS.
The Company did not include the cash delivery as part of the merger
consideration because it did characterize the cash as "consideration" but rather
as a minimum amount of capital that will be available for the combined company
following the closing of the transaction. The cash is required to be available
at closing for operations of the company following the closing, and will not be
paid out as consideration to the Alpha Innotech shareholders. However, the
Company has revised the Amended Proxy to refer to the minimum closing date cash
requirement and included additional disclosure regarding the $500,000 advance.
BOARD OF DIRECTORS' REASONS FOR THE MERGER, PAGE 21
21. PLEASE BALANCE THE DISCUSSION OF XTRANA'S REASONS FOR THE TRANSACTION
WITH A LIST OF ADVERSE FACTORS THAT WERE CONSIDERED. YOUR BRIEF
REFERENCE TO CERTAIN RISKS CONSIDERED ON PAGE 22 IS NOT SUFFICIENT.
THIS DISCUSSION SHOULD ADDRESS NOT ONLY THE DIFFICULTIES ASSOCIATED
WITH THE ACQUISITION AGREEMENT AND INTEGRATING THE COMBINED COMPANY,
BUT ALSO ANY ISSUES REGARDING ALPHA INNOTECH ITSELF THAT XTRANA'S BOARD
CONSIDERED TO BE ADVERSE.
The Company has included additional disclosure in the Amended Proxy to
address the Staff's comments.
22. PLEASE EXPAND THE FACTORS CONSIDERED BY THE BOARD OF XTRANA IN
APPROVING THE AGREEMENT AND PLAN OF MERGER TO DISCUSS EACH ITEMIZED
FACTOR IN REASONABLE DETAIL SO THAT THE READER UNDERSTANDS THE BOARD'S
THOUGHT PROCESS. EACH OF THE MATERIAL REASONS FOR THE BOARD'S DECISION,
BOTH POSITIVE AND NEGATIVE, SHOULD BE EXPANDED SO THAT THE READER
UNDERSTANDS THE NATURE OF THE FACTORS CONSIDERED, THE BOARD'S
CONCLUSIONS AND OBSERVATIONS ABOUT SUCH FACTORS, AND HOW SUCH
INFORMATION INFLUENCED THE BOARD'S DELIBERATIONS. FOR EXAMPLE, TO BE
MEANINGFUL FOR SHAREHOLDERS, THE LIST OF FACTORS ON PAGE 16, SHOULD
ALSO DISCUSS WHAT
<PAGE>
Securities and Exchange Commission
July 7, 2005
Page 7
CONCLUSIONS THE BOARD REACHED ABOUT THE TWO COMPANIES' COMPATIBILITY
AND HOW EACH FACTOR WEIGHED IN FAVOR OF APPROVING THE MERGER.
The Company has included additional disclosure in the Amended Proxy to
address the Staff's comments.
23. PLEASE PROVIDE US SUPPLEMENTAL1Y WITH COPIES OF ANY NON-PUBLIC
INFORMATION -- DOCUMENTS, FINANCIAL FORECASTS, PROJECTIONS AND
PRESENTATIONS -- USED BY OR ON BEHALF OF XTRANA IN THE MERGER
NEGOTIATIONS. WE MAY HAVE ADDITIONAL COMMENTS.
The Company did not provide any presentations, forecasts or other
non-public information in connection with the merger discussions