-----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, Wtr28z+q99+YBt3Z5OLWUD+fpo6nzaV4/QLPBlxBabgLYgoi0/5un+OVNAQrWioN QdIBeJjELnhlNsP+Z9P5RQ== 0000927016-98-003373.txt : 19980907 0000927016-98-003373.hdr.sgml : 19980907 ACCESSION NUMBER: 0000927016-98-003373 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19980904 EFFECTIVENESS DATE: 19980904 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: V I TECHNOLOGIES INC CENTRAL INDEX KEY: 0001040017 STANDARD INDUSTRIAL CLASSIFICATION: BIOLOGICAL PRODUCTS (NO DIAGNOSTIC SUBSTANCES) [2836] IRS NUMBER: 113238476 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-62927 FILM NUMBER: 98704675 BUSINESS ADDRESS: STREET 1: 155 DURYEA RD CITY: MELVILLE STATE: NY ZIP: 11747 BUSINESS PHONE: 5167527314 MAIL ADDRESS: STREET 1: 155 DURYEA RD CITY: MELVILLE STATE: NY ZIP: 11747 S-8 1 FORM S-8 1998 EQUITY INCENTIVE PLAN As filed with the Securities and Exchange Commission on September 4, 1998 REGISTRATION NO. 333-____________ SECURITIES AND EXCHANGE COMMISSION Washington, D. C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 V.I. TECHNOLOGIES, INC. (Exact name of registrant as specified in its charter) DELAWARE 11-3238476 (State or other jurisdiction (I.R.S. Employer of incorporation) Identification No.) 155 DURYEA ROAD, MELVILLE, NEW YORK 11747 (Address of registrant's principal executive offices) 1998 EQUITY INCENTIVE PLAN (Full Title of the Plan) JOHN R. BARR, PRESIDENT AND CHIEF EXECUTIVE OFFICER V.I. Technologies, Inc. 155 Duryea Road Melville, New York 11747 (516) 752-7314 (Name, address and telephone number of agent for service) with copies to: STEVEN N. FARBER, ESQUIRE MARC A. RUBENSTEIN, ESQUIRE Palmer & Dodge LLP One Beacon Street Boston, Massachusetts 02108 (617) 573-0100 CALCULATION OF REGISTRATION FEE
- ------------------------------------------------------------------------------------------------------------------------------------ Title of each class of securities to Amount to be Proposed maximum offering Proposed maximum aggregate Amount of be registered registered price per share offering price registration fee - ------------------------------------------------------------------------------------------------------------------------------------ Common Stock, $0.01 par value 2,146,690 shares $11.75(1) $25,223,608(1) $7,440.96 - ------------------------------------------------------------------------------------------------------------------------------------
(1) Estimated solely for the purpose of determining the registration fee and computed pursuant to Rule 457(h) based upon the average of the high and low sale prices on August 28, 1998 as reported by the Nasdaq National Market. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference. - ------------------------------------------------ The following documents filed with the Securities and Exchange Commission (the "Commission") are incorporated herein by reference: (a) The Registrant's Final Prospectus filed with the Commission on June 11, 1998 pursuant to Rule 424(b)(4) under the Securities Act of 1933, as amended. (b) All other reports of the Registrant filed pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), since the end of the last fiscal year covered by the Final Prospectus referred to in (a) above. (c) The description of the Registrant's Common Stock contained in its Registration Statement on Form 8-A filed with the Commission on May 13, 1998, including any amendment or report filed hereafter for the purpose of updating such description. All documents filed after the date of this Registration Statement by the Registrant pursuant to Section 13(a), 13(c), 14 and 15(d) of the Exchange Act and prior to the filing of a post-effective amendment that indicates that all shares of Common Stock offered hereunder have been sold or which deregisters all shares of Common Stock remaining unsold shall be deemed to be incorporated by reference herein and to be a part hereof from the date of the filing of such reports and documents. Item 4. Description of Securities. - ----------------------------------- Not applicable. Item 5. Interests of Named Experts and Counsel. - ------------------------------------------------ The validity of the Common Stock offered hereby will be passed upon for the Registrant by Palmer & Dodge LLP, Boston, Massachusetts. Item 6. Indemnification of Directors and Officers. - -------------------------------------------------- Article NINTH of the Registrant's Restated Certificate of Incorporation provides that directors of the Registrant will not be personally liable to the Registrant or its stockholders for monetary damages for breach of fiduciary duty as a director, whether or not an individual continues to be a director at the time such liability is asserted, except for liability (i) for any breach of the director's duty of loyalty to the Registrant or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) pursuant to Section 174 of the Delaware General Corporation Law or (iv) for any transaction from which the director derives an improper personal benefit. Article TENTH of the Registrant's Restated Certificate of Incorporation provides that the Registrant shall, to the fullest extent permitted by the General Corporation Law of the State of Delaware, as amended from time to time, indemnify each person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, by reason of the fact that he is or was, or has agreed to become a director or officer of the Registrant, or is or was serving, or has agreed to serve, at the request of the Registrant as a director, officer or trustee of, or in a similar capacity with, another corporation, partnership, joint venture, trust or other enterprise. The indemnification provided for in Article TENTH is expressly not exclusive of any other rights to which those seeking indemnification may be entitled under any law, agreement or vote of stockholders or disinterested directors or otherwise, and shall inure to the benefit of the heirs, executors and administrators of such persons. Article TENTH further permits the Board of Directors to authorize the grant of indemnification rights to other employees and agents of the Registrant and such rights may be equivalent to, or greater or less than, those set forth in Article TENTH. Section 145 of the Delaware General Corporation Law grants the Registrant the power to indemnify each person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative by reason of the fact that he is or was a director, officer, employee or agent of the Registrant, or is or was serving at the request of the Registrant as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys' fees) judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with any action, suit or proceeding if (i) he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Registrant and (ii) with respect to any criminal action or proceeding, he had no reasonable cause to believe his conduct was unlawful, provided, however, no indemnification shall be made in connection with any proceeding brought by or in the right of the Registrant where the person involved is adjudged to be liable to the Registrant except to the extent approved by a court. Pursuant to Section 145 of the General Corporation Law of the State of Delaware and the By-laws of the Registrant, the Registrant maintains insurance for directors and executive officers and has entered into agreements with all of its executive officers and directors affirming the Registrant's obligation to indemnify them to the fullest extent permitted by law and providing various other protections. Item 7. Exemption from Registration Claimed. - -------------------------------------------- Not applicable. Item 8. Exhibits. - -----------------
Exhibit Number Description -------------- ----------- 4.1 Restated Certificate of Incorporation of the Registrant. Incorporated by reference to the Registrant's Registration Statement on Form S-1, filed with the Commission on February 26, 1998 (File No. 333-46933). 4.2 Amended and Restated By-laws of the Registrant. Incorporated by reference to the Registrant's Registration Statement on Form S-1, filed with the Commission on February 26, 1998 (File No. 333-46933). 4.3 Form of Certificate for Common Stock. Incorporated by reference to the Registrant's Registration Statement on Form S-1, filed with the Commission on February 26, 1998 (File No. 333-46933). 5.1 Opinion of Palmer & Dodge LLP as to the legality of the securities registered hereunder. Filed herewith. 23.1 Consent of KPMG Peat Marwick LLP, independent auditors. Filed herewith. 23.2 Consent of Palmer & Dodge LLP. Contained in Opinion of Palmer & Dodge LLP, filed as Exhibit 5.1 hereto. 24.1 Power of Attorney. Set forth on the signature page to this Registration Statement.
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-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 this Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represents a fundamental change in the information set forth in this Registration Statement; (iii) To include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this 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 with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in this 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 any liability under the Securities Act of 1933, each filing of the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Exchange that is incorporated by reference in this Registration Statement 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. (c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrant pursuant to the provisions referred to in Item 6 hereof, or otherwise, the Registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the 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 Act and will be governed by the final adjudication of such issue. 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 Melville, State of New York, on this 4th day of September, 1998. V.I. TECHNOLOGIES, INC. By: /s/ John R. Barr ----------------------------------------- John R. Barr President and Chief Executive Officer POWER OF ATTORNEY We, the undersigned officers and directors of V.I. Technologies, Inc. hereby severally constitute and appoint John R. Barr, Thomas T. Higgins and Marc A. Rubenstein and each of them singly, our true and lawful attorneys-in-fact, with full power to them in any and all capacities, to sign any and all amendments to this Registration Statement on Form S-8, including any post- effective amendments thereto, and to file the same, with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, hereby ratifying and confirming all that each of said attorneys-in- fact may do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated:
Signature TITLE DATE --------- ----- ---- /s/ John R. Barr President, Chief Executive September 4, 1998 - ------------------------ Officer and Director John R. Barr (Principal Executive Officer) /s/ Thomas T. Higgins Executive Vice President and September 4, 1998 - ------------------------ Chief Financial Officer Thomas T. Higgins (Principal Financial Officer and Principal Accounting Officer) /s/ David Tendler Director September 4, 1998 - ------------------------ David Tendler /s/ Richard A. Charpie Director September 4, 1998 - ------------------------ Richard A. Charpie /s/ Jeremy Hayward-Surry Director September 4, 1998 - ------------------------ Jeremy Hayward-Surry /s/ Bernard Horowitz Director September 4, 1998 - ------------------------ Bernard Horowitz /s/ Irwin Lerner Director September 4, 1998 - ------------------------ Irwin Lerner
/s/ Peter D. Parker Director September 4, 1998 - ------------------------ Peter D. Parker /s/ Damion E. Wicker Director September 4, 1998 - ------------------------ Damion E. Wicker, M.D.
EXHIBIT INDEX -------------
Exhibit Number Description - -------------- ----------- 4.1 Restated Certificate of Incorporation of the Registrant. Incorporated by reference to the Registrant's Registration Statement on Form S-1, filed with the Commission on February 26, 1998 (File No. 333-46933). 4.2 Amended and Restated By-laws of the Registrant. Incorporated by reference to the Registrant's Registration Statement on Form S-1, filed with the Commission on February 26, 1998 (File No. 333-46933). 4.3 Form of Certificate for Common Stock. Incorporated by reference to the Registrant's Registration Statement on Form S-1, filed with the Commission on February 26, 1998 (File No. 333-46933). 5.1 Opinion of Palmer & Dodge LLP as to the legality of the securities registered hereunder. Filed herewith. 23.1 Consent of KPMG Peat Marwick LLP, independent auditors. Filed herewith. 23.2 Consent of Palmer & Dodge LLP. Contained in Opinion of Palmer & Dodge LLP, filed as Exhibit 5.1 hereto. 24.1 Power of Attorney. Set forth on the signature page to this Registration Statement.
EX-5.1 2 OPINION OF PALMER & DODGE LLP EXHIBIT 5.1 PALMER & DODGE LLP One Beacon Street Boston, Massachusetts 02108 Telephone: (617) 573-0100 Facsimile: (617) 227-4420 September 4, 1998 V.I. Technologies, Inc. 155 Duryea Road Melville, New York 11747 Ladies and Gentlemen: We are rendering this opinion in connection with the Registration Statement on Form S-8 (the "Registration Statement") filed by V.I. Technologies, Inc. (the "Company") with the Securities and Exchange Commission (the "Commission") under the Securities Act of 1933, as amended (the "Act"), on or about the date hereof. The Registration Statement relates to 2,146,690 shares (the "Shares") of the Company's Common Stock, $0.01 par value, offered pursuant to the provisions of the Company's 1998 Equity Incentive Plan (the "Plan"). We have acted as your counsel in connection with the preparation of the Registration Statement and are familiar with the proceedings taken by the Company in connection with the authorization of the issuance and sale of the Shares. We have examined all such documents as we consider necessary to enable us to render this opinion. Based upon the foregoing, we are of the opinion that when issued in accordance with the terms of the Plan, the Shares will be legally issued, fully paid and nonassessable. We hereby consent to the filing of this opinion as a part of the Registration Statement and to the reference to our firm under Item 5 thereof. Very truly yours, /s/ Palmer & Dodge LLP PALMER & DODGE LLP EX-23.1 3 CONSENT OF KPMG PEAT MARWICK LLP EXHIBIT 23.1 INDEPENDENT AUDITORS' CONSENT The Board of Directors V.I. Technologies, Inc. We consent to incorporation by reference in this Registration Statement on Form S-8 pertaining to the 1998 Equity Incentive Plan of our report dated February 2, 1998, with respect to the financial statements of V.I. Technologies, Inc. as of December 31, 1997 and 1996, included in the Registration Statement (Form S-1 No. 333-46933) and related Prospectus of V.I. Technologies, Inc., filed with the Securities and Exchange Commission. /s/ KPMG Peat Marwick LLP ------------------------- KPMG Peat Marwick LLP Jericho, New York September 1, 1998 -----END PRIVACY-ENHANCED MESSAGE-----