As filed with the Securities and Exchange Commission on July 7, 1998.
Registration Statement 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 Identification No.)
of incorporation or organization)
155 Duryea Road, Melville, New York 11747
- ---------------------------------------- ----------
(Address of principal executive offices) (Zip Code)
Restated V.I. Technologies, Inc.
1998 Employee Stock Purchase Plan
---------------------------------
(Full title of the plan)
Mr. John R. Barr
President and Chief Executive Officer
155 Duryea Road
Melville, New York 11747
(Name and address of agent for service)
(516) 752-7314
(Telephone number, including area code, of agent for service)
Copy to:
Frank E. Lawatsch, Jr., Esq.
Gibbons, Del Deo, Dolan, Griffinger & Vecchione
One Riverfront Plaza
Newark, New Jersey 07102-5497
(973) 596-4500
Calculation of Registration Fee
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------------
Proposed Proposed
Title of Each Class Amount Maximum Maximum Amount of
of Securities To Be Offering Price Aggregate Registration
to be Registered Registered(1) Per Share(2) Offering Price(2) Fee(2)
- --------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.01 par value per share 89,445 $11.3125 $1,011,847 $298.49
- --------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Pursuant to Rule 416(c) under the Securities Act of 1933, as
amended, this registration statement also covers additional shares of Common
Stock pursuant to the anti-dilution provisions of the Plan.
(2) Estimated in accordance with Rule 457(c) solely for the purposes of
calculating the registration fee, based on the average high and low prices per
share of the Registrant's Common Stock as reported on The Nasdaq National Market
on June 30, 1998.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents previously filed by V.I. Technologies, Inc.
(the "Company") with the Securities and Exchange Commission (the "Commission")
are incorporated by reference in this Registration Statement:
(1) The Company's Registration Statement No. 46933 on Form S-1
filed with the Commission on February 26, 1998, together with
the amendments thereto on Forms S-1/A filed with the
Commission on March 12, 1998, April 8, 1998, May 1, 1998, May
11, 1998 and June 5, 1998;
(2) The Company's prospectus filed with the Commission on June 11,
1998 under SEC Rule 424(b)(4) in connection with the Company's
aforementioned Registration Statement, in which there is set
forth the audited financial statements for the Company's
fiscal year ended December 31, 1997;
(3) The Company's Registration Statement No. 000-24241 on Form 8-A
filed with the Commission on May 13, 1998, in which there is
described the terms, rights and provisions applicable to the
Company's outstanding Common Stock; and
(4) All documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange
Act of 1934, prior to the filing of a post-effective amendment
which indicates that all securities offered have been sold or
which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference in this Registration
Statement and to be a part hereof from the respective date of
filing of such documents. Any statement contained in a
document incorporated by reference herein is modified or
superseded for all purposes to the extent that a statement
contained in this Registration Statement or in any other
subsequently filed document which is incorporated by reference
modifies or replaces such statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Article NINTH of the Company's Restated Certificate of Incorporation
provides that directors of the Company will not be personally liable to the
Company 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 Company 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 General Corporation Law
-2-
<PAGE>
of the State of Delaware or (iv) for any transaction from which the director
derives an improper personal benefit.
Article TENTH of the Company's Restated Certificate of Incorporation
provides that the Company 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, whether
civil, criminal, administrative or investigative, by reason of the fact that
such person is or was, or has agreed to become a director or officer of the
Company, or is or was serving, or has agreed to serve, at the request of the
Company, 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 Company
and such rights may be equivalent to, or greater or less than, those set forth
in Article TENTH.
Section 102(b)(7) of the General Corporation Law of the State of
Delaware provides that a corporation may eliminate or limit the personal
liability of a director to the corporation or its stockholders for monetary
damages for breach of fiduciary duty as a director, provided that such provision
shall not eliminate or limit the liability of a director (i) for any breach of
the director's duty of loyalty to the corporation 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 General
Corporation Law of the State of Delaware, or (iv) for any transaction from which
the director derived an improper personal benefit. No such provision shall
eliminate or limit the liability of a director for any act or omission occurring
prior to the date when such provision becomes effective.
Section 145 of the General Corporation Law of the State of Delaware
provides that a corporation may indemnify any 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, employee or agent of the
corporation, or is or was serving at the request of the corporation 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 such 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 corporation 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 corporation where the
person involved is adjudged to be liable to the corporation except to the extent
indemnification is approved by a court.
Pursuant to Section 145 of the General Corporation Law of the State of
Delaware and the By-laws of the Company, the Company maintains directors' and
officers' liability insurance for its executive officers and directors against
certain liabilities they may incur in their capacity as such.
The Company has entered into agreements with all of its directors and
executive officers affirming the Company's obligation to indemnify them to the
fullest extent permitted by law and providing various other protections.
-3-
<PAGE>
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
<TABLE>
<CAPTION>
Exhibit No. Description
- ----------- -----------
<S> <C>
4.1 Restated V.I. Technologies, Inc. 1998 Employee Stock
Purchase Plan
4.2 The Company's Restated Certificate of Incorporation
(incorporated by reference to Exhibit 3.8 to the
Company's Registration Statement on Form S-1 (File No.
333-46933), filed February 26, 1998).
4.3 Amended and Restated By-Laws of the Company (incorporated
by reference to Exhibit 3.10 to the Company's
Registration Statement on Form S-1 (File No. 333-46933),
filed February 26, 1998).
5.1 Opinion of Gibbons, Del Deo, Dolan, Griffinger &
Vecchione.
23.1 Consent of KPMG Peat Marwick LLP
23.2 Consent of Gibbons, Del Deo, Dolan, Griffinger &
Vecchione (included in Exhibit 5.1)
</TABLE>
Item 9. Undertakings.
The Company 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, as amended;
(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. Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20 percent change in the
maximum aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement;
-4-
<PAGE>
(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.
(2) That for the purpose of determining any liability under the
Securities Act, 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.
(4) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the Company'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 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.
(5) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Company pursuant to the foregoing provisions, or otherwise, the
Company has been advised that in the opinion of the Securities and Exchange
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 Company of expenses
incurred or paid by a director, officer or controlling person of the Company 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 Company 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.
-5-
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Company 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 7th day of
July, 1998.
V.I. TECHNOLOGIES, INC.
By: /s/ John R. Barr
--------------------------------
John R. Barr
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ John R. Barr President and Chief Executive July 7, 1998
- ----------------------------- Officer and Director
John R. Barr (Principal Executive Officer)
/s/ Thomas Higgins Executive Vice July 7, 1998
- ----------------------------- President-Operations and
Thomas Higgins Chief Financial Officer
(Principal Financial and
Accounting Officer)
/s/ David Tendler Director July 7, 1998
- -----------------------------
David Tendler
/s/ Richard A. Charpie Director July 7, 1998
- -----------------------------
Richard A. Charpie
/s/ Jeremy Hayward-Surry. Director July 7, 1998
- -----------------------------
Jeremy Hayward-Surry
/s/ Bernard Horowitz, Ph.D Director July 7, 1998
- -----------------------------
Bernard Horowitz, Ph.D
/s/ Irwin Lerner Director July 7, 1998
- -----------------------------
Irwin Lerner
/s/ Peter D. Parker Director July 7, 1998
- -----------------------------
Peter D. Parker
/s/ Damion E. Wicker, M.D. Director July 7, 1998
- -----------------------------
Damion E. Wicker, M.D.
</TABLE>
-6-
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
No. Description Method of Filing
<S> <C> <C>
4.1 Restated V.I. Technologies, Inc. Filed with this Registration
1998 Employee Stock Purchase Plan Statement
4.2 Restated Certificate of Incorporated by reference to
Incorporation Exhibit 3.8 to the Company's
Registration Statement on Form
S-1 (File No. 333-46933) filed
February 26, 1998
4.3 Amended and Restated By-Laws Incorporated by reference to
Exhibit 3.10 to the Company's
Registration Statement on Form
S-1 (File No. 333-46933) filed
February 26, 1998
5.1 Opinion of Gibbons, Del Deo, Filed with this Registration
Dolan, Griffinger & Vecchione Statement
23.1 Consent of KPMG Peat Marwick LLP Filed with this Registration
Statement
23.2 Consent of Gibbons, Del Deo, Included in Exhibit 5.1
Dolan, Griffinger & Vecchione
</TABLE>
Exhibit 4.1
RESTATED V.I. TECHNOLOGIES, INC.
1998
EMPLOYEE STOCK PURCHASE PLAN
WHEREAS, V.I. Technologies, Inc. (the "Company") wishes to establish
the Restated V.I. Technologies, Inc. 1998 Employee Stock Purchase Plan (the
"Plan") providing for the grant of options to purchase common stock of the
Company to employees who are employed by the Company on a regular full-time
basis.
NOW, THEREFORE, the Company establishes the Plan, the terms of which
are as follows:
1. Purpose.
The purpose of the Plan is to give Eligible Employees of V.I.
Technologies, Inc., a Delaware corporation, an opportunity to acquire shares of
its Common Stock, .01 par value per share, and to continue to promote its best
interests and enhance its long-term performance.
2. Definitions.
Whenever used in the Plan, the following words and phrases have the
meanings stated below unless a different meaning is clearly required by the
context:
(a) "Board" means the Board of Directors of the Company.
(b) "Code" means the Internal Revenue Code of 1986, as amended, and the
rules, regulations, and interpretations thereof issued by the Department of
Treasury, Internal Revenue Service, and the courts.
(c) "Committee" means a committee appointed by the Board of not less
than two Non-Employee Directors to which the Board may delegate its power with
respect to administration of the Plan under Section 3.
(d) "Common Stock" means shares of the common stock of the Company,
$.01 par value per share.
(e) "Company" means V.I. Technologies, Inc., a Delaware corporation.
(f) "Eligible Employee" means each person who, on the applicable
Semiannual Grant Date, has been employed by the Company on a regular full-time
basis for at least six (6) months. A person shall be considered employed on a
regular full-time basis if he or she is customarily employed at least twenty
(20) hours per week. Notwithstanding the foregoing, an Eligible Employee shall
not include any Employee who, immediately after the grant of an Option, owns
stock possessing five (5%) percent or more of the total combined voting power or
value of all classes of stock of the Company or of its parent or subsidiary, or
whose customary employment is not for more than five (5) months in any calendar
year. In determining stock ownership, the rules of Code Sections 423 and 425
apply, and stock that the Eligible Employee may purchase under outstanding
options is treated as stock owned by the Eligible Employee.
<PAGE>
(g) "Exercise Date" means June 30 and December 31 of each calendar
year.
(h) "Exercise Period" means for an Option the period of two (2) years
commencing on the Semiannual Grant Date of such Option.
(i) "Fair Market Value Per Share of Common Stock" as of the applicable
date means:
(i) If the Common Stock is listed on a national securities
exchange or traded on the over-the-counter market and sales
prices are regularly reported for the Common Stock, the average
of the closing or last prices of the Common Stock on the
Composite Tape or other comparable reporting system for the ten
(10) consecutive trading days immediately preceding the
applicable date;
(ii) If the Common Stock is not traded on a national securities
exchange but is traded on the over-the-counter market, and if
sales prices are not regularly reported for the Common Stock for
the ten (10) days referred to in clause (i), and if bid and asked
prices for the Common Stock are regularly reported, the average
of the mean between the bid and the asked price for the Common
Stock at the close of trading in the over-the-counter market for
the ten (10) days on which Common Stock was traded immediately
preceding the applicable date; and
(iii) If the Common Stock is neither listed on a national
securities exchange nor traded on the over-the-counter market,
such value as the Board in good faith determines.
Notwithstanding any other provision of the Plan, each determination
made with respect to the Fair Market Value Per Share of Common Stock subject to
an Option must satisfy the requirements of Code Section 423.
(j) "Grant Date" means each Semiannual Grant Date.
(k) "Non-Employee Director" has the meaning given this term in Rule
16b-3 under the Securities Exchange Act of 1934, as amended.
(l) "Option" means an option granted under this Plan that entitles a
Participating Employee to purchase shares of Common Stock.
(m) "Option Price" means eighty-five (85%) percent of the lesser of the
Fair Market Value Per Share of Common Stock as of the applicable Grant Date or
the applicable Exercise Date.
(n) "Participating Employee" means an Eligible Employee who elects to
make payroll deductions under Section 7.
(o) "Plan" means the Restated V.I. Technologies, Inc. 1998 Employee
Stock Purchase Plan as set forth herein and as it may be amended.
(p) "Semiannual Grant Date" means each January 1 and July 1, commencing
with July 1, 1998.
<PAGE>
3. Administration.
The Plan shall be administered by the Board, which, to the extent it may
determine, can delegate its powers with respect to administration of the Plan
(except its powers under Section 14(b)) to the Committee. If the Board chooses
to appoint a Committee, references hereinafter to the Board (except in Section
14(b)) are deemed to refer to the Committee. Subject to the express provisions
of the Plan, the Board has the exclusive authority and discretion to construe
and interpret the Plan, prescribe, amend, and rescind rules and regulations
relating to it, determine the terms of the Options, and make all other factual
and legal determinations necessary or appropriate in the administration of the
Plan. The determination of the Board on all matters regarding the Plan shall be
conclusive.
4. Maximum Number of Shares Available for Grant.
The aggregate number of shares of Common Stock available for grant as
Options under Section 5(a) shall not exceed 89,445 shares of Common Stock,
subject to adjustment under Section 10. Shares of Common Stock available for
grant under the Plan may be authorized and issued shares, or shares now or
hereafter held in the treasury of the Company. If any Option expires or is
terminated, surrendered, or cancelled without being exercised, in whole or in
part, the number of shares of Common Stock theretofore subject to the Option is
again available for grant in an Option and does not reduce the aggregate number
of shares of Common Stock available for grant as set forth in the first sentence
of this Section.
5. Grant of Options.
(a) Each Participating Employee on a Semiannual Grant Date, commencing
with the Semiannual Grant Date that occurs on July 1, 1998 and, subject to
earlier termination of the Plan under Section 14, ending with the last
Semiannual Grant Date on which shares of Common Stock are available for grant,
is granted an Option that entitles him or her to purchase, at the applicable
Option Price, the number of whole and fractional shares of Common Stock equal to
five (5%) percent of the Participating Employee's Compensation, not to exceed
Ten Thousand ($10,000) Dollars, divided by the Fair Market Value Per Share of
Common Stock as of the applicable Semiannual Grant Date. Each Participating
Employee on a Semiannual Grant Date shall receive an Option even if he or she is
then the holder of an unexpired and unexercised Option granted on an earlier
Semiannual Grant Date. The Semiannual Grant Date applicable to an Option granted
pursuant to this paragraph (a) is the Grant Date of such Option.
(b) If the number of shares of Common Stock for which Options are
granted under Section 5(a) exceeds the applicable number set forth in Section 4,
then the Options granted under Section 5(a) to all Participating Employees
shall, in a nondiscriminatory manner consistent with Section 13(c), be reduced
in proportion to their respective Compensations.
(c) A Participating Employee's Compensation means his or her regular
annual rate of compensation as of the applicable Semiannual Grant Date. Such
regular annual rate of compensation is to be determined by the Board in a
nondiscriminatory manner consistent with Section 13(c).
6. Terms of Options.
(a) Each Option, unless sooner expired under Section 6(b) or (c),
becomes exercisable on the Grant Date and is exercisable during the applicable
Exercise Period. Each Option not exercised during its Exercise Period expires at
the termination of the Exercise Period.
<PAGE>
(b) An Option expires on the first to occur of the end of the applicable
Exercise Period and the date that the employment of the Participating Employee
with the Company terminates (as determined by the Board) for any reason other
than death or disability.
(c) An Option expires on the first to occur of the end of the applicable
Exercise Period and the date three (3) months after the date that the employment
of the Participating Employee with the Company terminates by reason of a
disability (as determined by the Board).
(d) If the employment of the Participating Employee with the Company
terminates by reason of death, his or her Option expires at the end of the
applicable Exercise Period.
7. Payroll Deductions.
(a) Each Eligible Employee may, within fifteen (15) days prior to each
Semiannual Grant Date (the "Election Date"), elect in writing to make semiannual
contributions to the Plan of payroll deductions from one (1%) percent to five
(5%) per cent of his or her Compensation, not to exceed Ten Thousand ($10,000)
Dollars, pro-rata during the six month period commencing on each Semiannual
Grant Date from each regularly scheduled paycheck in increments of one (1%)
percent (i.e., 1%, 2%, 3%, etc.). If any payroll deduction would exceed the
amount of any of an Eligible Employee's paychecks, such Eligible Employee may
make a direct payment by personal check in the amount of such excess.
(b) Unless he or she elects otherwise, a Participating Employee who is
making payroll deductions prior to an Election Date is deemed to authorize the
same payroll deduction as in effect on the day before such Election Date.
(c) A Participating Employee may at any time cease participation in the
Plan by filing the appropriate form with the Company. The cessation will be
effective as soon as practicable, whereupon no further payroll deductions are to
be made. Payroll deductions and interest thereon not theretofore used for
purchases are to be used for purchases under Section 8. Any former Participating
Employee who ceased to participate may elect to participate in a subsequent
calendar year if then eligible. A Participating Employee may at any time during
the calendar year (but not more than four times) decrease his or her payroll
deductions by filing the appropriate form with the Company, which decrease
becomes effective with the first pay period of the first succeeding calendar
quarter to which it may be practicably applied.
(d) The Company shall invest all payroll deductions in a federally
insured money market account pending exercise of an Option, and shall credit
each Participating Employee with the interest earned on his or her payroll
deductions. The payroll deductions and the interest earned thereon are to be
held in a separate account for each Participating Employee (the "Payroll
Deduction Account").
(e) If a Participating Employee makes a hardship withdrawal from a
retirement plan or plan of deferred compensation with a cash or deferred
arrangement under Code Section 401(k), the Participating Employee shall not make
any payroll deduction contributions to this Plan for the twelve (12) months
following of receipt of the hardship withdrawal.
(f) If Option(s) granted to a Participating Employee expire unexercised,
or the Plan is terminated when a Participating Employee has unexercised
Option(s), the funds held in his or her Payroll Deduction Account not
theretofore used for purchases are to be refunded to the Participating Employee.
<PAGE>
8. Exercise of Options and Payment for Common Stock.
On each Exercise Date the Company shall purchase for the Participating
Employee, with the funds in his or her Payroll Deduction Account, the number of
whole and fractional shares of Common Stock determined by dividing the amount in
his or her Payroll Deduction Account by the Option Price. All shares so
purchased are to be maintained in a separate account for each Participating
Employee (the "Common Stock Account"). All dividends paid with respect to shares
held in a Common Stock Account are to be credited to the Participating
Employee's Payroll Deduction Account and used for purchases of shares of Common
Stock on the next Exercise Date.
9. Transferability.
No Option may be assigned, encumbered, pledged, transferred, or
otherwise disposed of (whether voluntarily or involuntarily by operation of law
or otherwise), except as provided by will or the applicable laws of descent or
distribution. No Option is subject to attachment, execution, levy, or similar
process. Any action not specifically permitted under this Section 9 is null and
void and without effect. An Option may be exercised only by the Participating
Employee during his or her lifetime, or under Section 6(d), by his or her estate
or the person who acquires the right to exercise the Option by bequest or
inheritance.
10. Adjustment Provisions.
The aggregate number of shares of Common Stock for which Options may be
granted, the aggregate number of shares of Common Stock subject to each
outstanding Option, and the Option Price of each Option may all be appropriately
adjusted as the Board determines for any increase or decrease in the number of
shares of issued Common Stock resulting from a subdivision or consolidation of
shares, whether through reorganization, recapitalization, stock split-up, stock
distribution or combination of shares, or the payment of a share dividend or
other increase or decrease in the number of shares outstanding effected without
receipt of consideration by the Company. Adjustments under this Section 10 are
to be made in the exclusive discretion of the Board, and its decision shall be
conclusive.
11. Dissolution, Merger and Consolidation.
Upon the dissolution or liquidation of the Company, or upon a merger or
consolidation of the Company in which the Company is not the surviving
corporation, each Option granted under the Plan expires as of the effective date
of such transaction; provided, however, that the Board must give at least thirty
(30) days' prior written notice of such event to each Participating Employee,
during which time he or she has a right to exercise his or her wholly or
partially unexercised Option and, subject to prior expiration under to Section
6(b) or (c), each Option becomes exercisable after receipt of such written
notice and prior to the effective date of such transaction.
12. Limitation on Options.
Notwithstanding any other provision of the Plan:
(a) The Company intends that Options granted and Common Stock issued
under the Plan shall be treated for all purposes as granted and issued under an
employee stock purchase plan under Code Section 423. Any provisions required to
be included in the Plan under Code Section 423 are included as though set forth
in the Plan in full.
<PAGE>
(b) No Participating Employee shall be granted an Option that permits
his or her rights to purchase stock under all employee stock purchase plans (as
defined in Code Section 423) of the Company and its parent and subsidiaries to
accrue at a rate that exceeds Twenty-Five Thousand ($25,000) Dollars of fair
market value of such stock (determined at the time of the grant of such Option)
for each calendar year in which the Option is outstanding at any time. Any
Option is deemed to be modified to the extent necessary to satisfy this
paragraph (b).
(c) All Eligible Employees and Participating Employees shall have the
same rights and obligations under the Plan, except that the amount of Common
Stock that may be purchased under Options granted on any Semiannual Grant Date
must bear a uniform relationship to the Compensation of Participating Employees.
All rules and determinations of the Board must be consistently applied to all
persons in similar circumstances.
13. Other Provisions.
(a) Legal and Other Requirements. The obligations of the Company to
purchase, sell and deliver Common Stock under the Plan shall be subject to all
applicable laws, regulations, rules and approvals, including, without
limitation, the effectiveness of a registration statement under the Securities
Act of 1933, as amended if deemed necessary or appropriate by the Company.
Certificates for share of Common Stock issued hereunder may be legended as the
Board determines appropriate.
(b) Termination and Amendment of Plan. The Board, without further action
on the part of the stockholders of the Company, may at any time and from time to
time alter, amend, or suspend the Plan or any Option granted hereunder, or may
at any time terminate the Plan; except that the Board shall not (except to the
extent provided in Section 10): (i) change the total number of shares of Common
Stock available for grant under the Plan; (ii) extend the duration of the Plan;
(iii) increase the maximum term of Options; or (iv) effect a change inconsistent
with Code Section 423. Any action taken by the Board must not materially and
adversely affect any outstanding Option without the consent of the holder
thereof.
(c) Application of Funds. The proceeds received by the Company from the
sale of Common Stock pursuant to the exercise of Options will be used for
general corporate purposes.
(d) Withholding Taxes. Upon the exercise of any Option the Company has
the right to require the optionee to remit to the Company an amount of cash
sufficient to satisfy all federal, state, and local withholding tax
requirements.
(e) Right to Terminate Employment. Nothing in the Plan or any agreement
entered into pursuant to the Plan confers upon any Eligible Employee,
Participating Employee, or other optionee the right to be employed or continue
in the employment of the Company, or affects any right that the Company may have
to terminate the employment of any such person.
(f) Rights as a Stockholder. At the time funds from a Participating
Employee's Payroll Deduction Account are used to purchase shares of Common
Stock, the Participating Employee has all the rights and privileges of a
stockholder of the Company with respect to whole shares purchased under the Plan
regardless of whether certificates representing whole shares have been issued.
(g) Leaves of Absence and Disability. The Board may make such rules,
regulations, and determinations as it determines appropriate with respect to any
leave absence taken by reason of a disability of any Eligible Employee or
Participating Employee. Without limiting the generality of the
<PAGE>
foregoing, the Board may determine (i) whether or not any such leave of absence
constitutes a termination of employment within the meaning of the Plan, and (ii)
the impact, if any, of any such leave of absence on Options theretofore granted
to any Participating Employee who takes a leave of absence.
(h) Notices. Every notice, election, or revocation authorized or
required by the Plan is deemed delivered to the Company (i) on the date it is
personally delivered to the Secretary of the Company at its principal executive
offices, or (ii) three business days after it is sent by registered or certified
mail, postage prepaid, addressed to the Secretary at such offices; and is deemed
delivered to an optionee (iii) on the date it is personally delivered to him or
her, or (iv) three business days after it is sent by registered or certified
mail, postage prepaid, addressed to him or her at the last address shown for him
or her on the records of the Company. The Board may make such other rules for
the delivery of notices, elections, or revocations as it determines appropriate.
(i) Applicable Law. All questions pertaining to the validity,
construction, interpretation and administration of the Plan and Options granted
hereunder are to be determined under the laws of Delaware to the extent not
inconsistent with Code Section 423.
(j) Indemnification. The Company shall indemnify the Board and the
Committee for all Claims arising from or related to any act or omission made in
good faith in exercising their rights and performing their obligations under the
Plan. For purposes of the Plan, Claims mean all assessments, costs, damages,
expenses, fines, judgments, liabilities, losses, penalties, and reasonable
attorney's and paralegal's fees and disbursements. This indemnification survives
termination of the Plan and any Option.
Exhibit 5.1
July 7, 1998
V.I. Technologies, Inc.
155 Duryea Road
Melville, New York 11747
Re: Restated V.I. Technologies, Inc. 1998 Employee Stock Purchase Plan
Ladies and Gentlemen:
We have acted as counsel to V.I. Technologies, Inc. (the "Company") in
connection with all proceedings relating to the authorization and proposed
issuance and sale by the Company of shares of common stock, $.01 par value per
share ("Common Stock") upon the exercise of stock options granted pursuant to
the Restated V.I. Technologies, Inc. 1998 Employee Stock Purchase Plan (the
"1998 Plan"), as described in the Registration Statement on Form S-8 (the
"Registration Statement"), filed by the Company with the Securities and Exchange
Commission under the Securities Act of 1933, as amended, on the date
hereof.
Based upon our examination of such documents and proceedings as
we have deemed necessary and pertinent, we are of the opinion that when the
shares of Common Stock are issued upon the due exercise of stock options granted
in accordance with the 1998 Plan, such shares of Common Stock will be duly and
validly issued and outstanding and will be fully paid
and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Gibbons, Del Deo, Dolan, Griffinger & Vecchione
GIBBONS, DEL DEO, DOLAN,
GRIFFINGER & VECCHIONE
A Professional Corporation
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
The Board of Directors
V.I. Technologies, Inc.
We consent to the use of the report incorporated herein by reference.
/s/ KPMG Peat Marwick LLP
KPMG Peat Marwick LLP
Jericho, New York
July 2, 1998
