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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)
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<S> <C>
DELAWARE 11-3238476
(State or other jurisdiction of incorporation) (I.R.S. Employer Identification No.)
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155 DURYEA ROAD, MELVILLE, NEW YORK 11747
(Address of registrant's principal executive offices)
1998 DIRECTOR STOCK OPTION 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
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Proposed maximum Proposed maximum
Title of each class of securities to Amount to be offering price per aggregate offering Amount of
be registered registered Share Price registration fee
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Common Stock, $0.01 par value 89,445 shares $11.75(1) $1,050,979(1) $310
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(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.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
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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.
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Not applicable.
Item 5. Interests of Named Experts and Counsel.
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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.
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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
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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.
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Not applicable.
Item 8. Exhibits.
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Exhibit Number Description
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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.
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Item 9. Undertakings.
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(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
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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.
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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
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John R. Barr
President and Chief Executive Officer
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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:
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SIGNATURE TITLE DATE
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/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
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David Tendler
/s/ Richard A. Charpie Director September 4, 1998
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Richard A. Charpie
/s/ Jeremy Hayward-Surry Director September 4, 1998
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Jeremy Hayward-Surry
/s/ Bernard Horowitz Director September 4, 1998
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Bernard Horowitz
/s/ Irwin Lerner Director September 4, 1998
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Irwin Lerner
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/s/ Peter D. Parker Director September 4, 1998
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Peter D. Parker
/s/ Damion E. Wicker Director September 4, 1998
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Damion E. Wicker, M.D.
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EXHIBIT INDEX
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Exhibit Number Description
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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.
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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 89,445 shares (the "Shares") of the
Company's Common Stock, $0.01 par value, offered pursuant to the provisions of
the Company's 1998 Director Stock Option 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
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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 Director Stock Option 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
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KPMG Peat Marwick LLP
Jericho, New York
September 1, 1998
