<PAGE>
As filed with the Securities and Exchange Commission on November 10, 1999
Registration No. 333-87443
===========================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
POST-EFFECTIVE AMENDMENT NO. 2
TO
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
V.I. TECHNOLOGIES, INC.
(Exact Name of Registrant as Specified in Its Charter)
Delaware 2836 11-328476
(State or Other (Primary Standard (I.R.S. Employer
Jurisdiction of Industrial Identification Number)
Incorporation or Classification Code
Organization) Number)
155 Duryea Road
Melville, New York 11747
(516) 752-7314
(Address, Including Zip Code, and Telephone Number, Including Area Code,
of Registrant's Principal Executive Offices)
John R. Barr
President and Chief Executive Officer
V.I. Technologies, Inc.
155 Duryea Road
Melville, New York 11747
(516) 752-7314
(Name, Address, Including Zip Code, and Telephone Number,
Including Area Code, of Agent for Service)
copies to:
<TABLE>
<S> <C> <C>
William T. Whelan, Esq. Dr. Samuel K. Ackerman Lynnette C. Fallon, Esq.
R. Mark Chamberlin, Esq. Pentose Pharmaceuticals, Inc. Palmer & Dodge LLP
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. 45 Moulton Street One Beacon Street
One Financial Center Cambridge, MA 02138 Boston, MA 02108
Boston, MA 02111 (617) 864-4800 (617) 573-0100
(617) 542-6000
</TABLE>
Approximate Date of Commencement of Proposed Sale to the Public: As soon as
practicable after the effectiveness of this Registration Statement and the
effective time of the merger of Pentose Pharmaceuticals, Inc. with and into the
Registrant as described in the Agreement and Plan of Merger and Reorganization
dated as of July 28, 1999, as amended.
If the securities being registered on this Form are being offered in connection
with the formation of a holding company and there is compliance with General
Instruction G, check the following box. [_]
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(d) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE
SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SECTION 8(a), MAY DETERMINE.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
EXPLANATORY NOTE
The purpose of this amendment is to supplement the Joint Proxy
Statement/Prospectus of V. I. Technologies, Inc. ("VITEX") and Pentose
Pharmaceuticals, Inc. ("Pentose") dated October 8, 1999. The supplement
contained herein describes an amendment (the "Amendment") to the Agreement and
Plan of Merger and Reorganization between VITEX and Pentose described in the
Joint Proxy Statement/Prospectus. The supplement also summarizes certain recent
developments relating to Pentose.
<PAGE>
[PRELIMINARY DRAFT DATED NOVEMBER 10, 1999, SUBJECT TO COMPLETION]
The information in this Joint Proxy Statement/Prospectus Supplement is not
complete and may be changed. We may not issue these securities until the
registration statement filed with the Securities and Exchange Commission is
effective. This Joint Proxy Statement/Prospectus Supplement is not an offer to
sell these securities and it is not soliciting an offer to buy these securities
in any state where the offer or sale is not permitted.
Supplement No. 1
Dated November ____, 1999
to
______________
V.I. Technologies, Inc.
and
Pentose Pharmaceuticals, Inc.
Joint Proxy Statement/Prospectus
______________
The following information supplements and should be read in conjunction
with the Joint Proxy Statement/Prospectus dated October 8, 1999 of V. I.
Technologies, Inc. ("VITEX") and Pentose Pharmaceuticals, Inc., previously
furnished to stockholders of VITEX and Pentose. This supplement contains
information regarding certain changes to the terms of the proposed merger of
Pentose into VITEX and certain recent developments relating to Pentose. The
purpose of this supplement is to provide you with this additional information.
To the extent information in this supplement differs from or conflicts with
information contained in the Joint Proxy Statement/Prospectus, this supplement
supersedes and replaces the information in the Joint Proxy Statement/Prospectus.
This supplement is being furnished to record holders of Pentose common
stock and preferred stock as of October 15, 1999, in connection with the
solicitation of proxies by the Board of Directors of Pentose for use at a
special meeting of stockholders of Pentose to be held on November 12, 1999 and
at any and all adjournments or postponements of that special meeting. The
Pentose special meeting and the VITEX special meeting to be held on November 12,
1999 are being held to consider and vote upon proposals to approve and adopt the
Agreement and Plan of Merger and Reorganization, dated as of July 28, 1999, as
amended on November 8, 1999, between Pentose and VITEX under which Pentose will
be merged with and into VITEX, with VITEX being the surviving corporation.
______________
PLEASE SEE THE SECTION ENTITLED "RISK FACTORS" BEGINNING ON PAGE I-12
OF THE JOINT PROXY STATEMENT/PROSPECTUS FOR A DISCUSSION OF RISKS
ASSOCIATED WITH THE MERGER.
______________
Neither the United States Securities and Exchange Commission nor any state
securities commission has approved or disapproved the VITEX common stock
to be issued in the merger or determined if this supplement to the Joint
Proxy Statement/Prospectus is accurate or adequate. Any representation
to the contrary is a criminal offense.
This supplement is dated November ____, 1999 and is expected to be first
mailed to Pentose stockholders on November ___, 1999. This supplement should be
read in conjunction with the Joint Proxy Statement/Prospectus dated October 8,
1999.
<PAGE>
INTRODUCTION
This supplement is provided for the purpose of supplementing the Joint
Proxy Statement/ Prospectus dated October 8, 1999 of V. I. Technologies, Inc.
("VITEX") and Pentose Pharmaceuticals, Inc. ("Pentose").
This supplement is being furnished to holders of Pentose common stock and
Pentose preferred stock in connection with the solicitation of proxies by the
Board of Directors of Pentose for use at the special meeting of stockholders of
Pentose, which is scheduled to be held on Friday, November 12, 1999, at the
offices of Palmer & Dodge LLP, One Beacon Street, Boston, Massachusetts,
commencing at 10:00 a.m., local time.
As more fully described in the Joint Proxy Statement/Prospectus, at the
special meeting of stockholders you will be asked to vote on the Agreement and
Plan of Merger and Reorganization dated as of July 28, 1999, as amended on
November 8, 1999, among Pentose, VITEX and certain stockholders of Pentose, and
the merger of Pentose into VITEX as contemplated by the merger agreement.
BACKGROUND
In the Joint Proxy Statement/Prospectus, we described the terms of the
proposed merger as contemplated by the merger agreement as well as the effects
of the proposed merger on Pentose stockholders. On November 8, 1999, the merger
agreement was amended, and, as a result, the effect on Pentose stockholders will
be different from that described in the Joint Proxy Statement/Prospectus if the
merger is approved.
In addition, certain events have occurred since the date of the Joint Proxy
Statement/Prospectus with respect to the business and operations of Pentose of
which you may want to be aware and which are described below.
AMENDMENT TO MERGER AGREEMENT
Under the terms of the merger agreement as described in the Joint Proxy
Statement/Prospectus, in consideration for the acquisition of Pentose, VITEX
will issue, and Pentose stockholders will receive, 34% of the outstanding shares
of VITEX common stock after giving effect to the merger. The aggregate
consideration for the merger has not changed as a result of the merger agreement
amendment; Pentose stockholders, in the aggregate, will still receive 34% of the
outstanding shares of VITEX common stock after giving effect to the merger.
However, following an amendment to the Certificate of Incorporation of Pentose,
filed with the Secretary of State of Delaware on November 9, 1999 (the "Pentose
Charter Amendment"), the holders of a majority of the Pentose preferred stock
have elected to accept a re-allocation among the Pentose stockholders of the
shares of VITEX common stock to be issued in the merger which is reflected in an
amendment to the merger agreement. Under the original merger agreement, the
Pentose common and preferred stockholders would have received the same fraction
of a share of VITEX common stock for each share of Pentose common or preferred
stock, irrespective of class. This is because the preferred stockholders of
Pentose had agreed to waive their so-called liquidation preference, which is a
provision of Pentose's charter which would have entitled them to receive
approximately 76% of the aggregate number of VITEX shares to be delivered in the
merger, assuming a $5.00 value per share of VITEX common stock. By waiving
their liquidation preference, the preferred stockholders of Pentose were in fact
agreeing to receive fewer VITEX shares in the merger than they would have been
entitled to receive under the Pentose charter. As a result of several factors
including, but not limited to, the current price of VITEX common stock on the
Nasdaq Stock Market, the preferred stockholders of Pentose have reconsidered
their position and have proposed the re-allocation of VITEX common stock which
is reflected in the merger agreement amendment. The re-allocation provides that
the Pentose preferred stockholders will receive a greater percentage of the
VITEX shares to be issued in the merger (approximately 70% of the total) than
provided for in the original merger agreement (approximately 64% of the total)
but still not as many VITEX shares as they would have received had they
exercised their right to receive the liquidation preference (approximately 76%
of the total).
Under the terms of the merger agreement amendment, holders of Pentose stock
will receive a different fraction of VITEX common stock in respect of each class
or series of Pentose stock held by them prior to the merger so that the Pentose
common stockholders (as a whole), Pentose Series A Preferred stockholders (as a
whole), and Pentose Series B stockholders (as a whole) will receive
approximately 30%, 42%, and 28%, respectively, of the total number of shares of
VITEX common stock issued in connection with the merger. Under the original
merger agreement, the common stockholders of Pentose would have received 36% of
the VITEX shares issued in the merger, the holders of Pentose Series A Preferred
Stock would
2
<PAGE>
have received approximately 42% of the VITEX shares issued in the merger and the
holders of Pentose Series B Preferred Stock would have received approximately
22% of the VITEX shares issued in the merger. While each share of common and
preferred stock of Pentose previously was exchangeable into approximately 0.5984
of a share of VITEX common stock (estimated based on the number of outstanding
shares of VITEX common stock and Pentose common and preferred stock on October
18, 1999), as a result of the merger agreement amendment, the following exchange
ratios will be effective (based on the number of outstanding shares of VITEX
common stock and Pentose common and preferred stock as of November 2, 1999):
each holder of Pentose common stock will be entitled to receive for each share
of Pentose common stock, approximately 0.4894 of a share of VITEX common stock;
each holder of Pentose Series B Preferred Stock will be entitle to receive, for
each share of Pentose Series A Preferred Stock, approximately 0.6022 of a share
of VITEX common stock; and each holder of Pentose Series B Preferred Stock will
be entitled to receive for each share of Pentose Series B Preferred Stock,
approximately 0.7750 of a share of VITEX common stock.
The reallocation of the VITEX shares among the Pentose stockholders is being
effected as an amendment to the merger agreement, rather than as an agreement
among only the Pentose stockholders, so as to preserve the tax benefits of the
merger to the Pentose stockholders. You are encouraged to review the description
of the tax consequences of the merger transaction included on pages I-26 through
I-27 of the Joint Proxy Statement/Prospectus.
EFFECT OF AMENDMENT TO MERGER AGREEMENT ON INTERESTS
OF CERTAIN PERSONS IN THE MERGER
As discussed in the Joint Proxy Statement/Prospectus, you should be aware
that certain members of the management and Board of Directors of Pentose, and
certain members of the Board of Directors of VITEX, have interests in the merger
that may be different from, or in addition to, the interests of the stockholders
generally. Specifically, Ampersand Ventures (as defined in the Joint Proxy
Statement/Prospectus), would have owned approximately 31.7% of the common stock
of VITEX upon the closing of the merger as contemplated by the original merger
agreement. Under the amendment to the merger agreement, Ampersand Ventures will
own 32.9% of the common stock of VITEX upon the closing of the merger.
RECENT DEVELOPMENTS OF PENTOSE
Since the date of the Joint Proxy Statement/Prospectus, the following event
has occurred with respect to the business and operations of Pentose of which you
may want to be aware:
HAEMONETICS AGREEMENT
Pentose entered into a Development Agreement, dated as of October 26, 1999,
with Haemonetics Corporation ("Haemonetics"), a company which develops and
commercializes automated blood processing systems, including automated medical
devices which use proprietary technology to wash red blood cells. Under the
Development Agreement, Pentose and Haemonetics will collaborate to asses the
feasibility and optimal means of utilizing Pentose's proprietary biological
materials together with Haemonetics' automated blood processing systems to
inactivate pathogens in red blood cells and then to remove or neutralize the
inactivation agent. The Development Agreement covers the implementation of Phase
I clinical trials and the planning stages for Phase II/III clinical trials.
Each party will bear its own costs in performing its obligations under the
agreement. The agreement may be terminated in certain circumstances, including
a decision by Haemonetics following completion of the Phase I trial not to
participate in the Phase II/III trials and a breach of the agreement by either
party.
3
<PAGE>
VOTING PROCEDURES
Enclosed for your convenience is a new proxy. Whether you have already
voted or not, please complete, sign, date and promptly return the enclosed proxy
in the enclosed envelope. Since new proxies are being solicited, any proxy that
you previously granted will be, without further action, deemed revoked. After
you submit a new proxy, you may revoke it by delivering a subsequently executed
new proxy or by delivering written notice of revocation to the Secretary of
Pentose prior to the time voting is declared closed or by attending the special
meeting of stockholders and voting in person.
PLEASE ALSO RETURN A COPY OF THE ENCLOSED PROXY IMMEDIATELY TO LYNNETTE C.
FALLON, ESQ. OF PALMER & DODGE LLP BY FAX (FAX NUMBER 617-227-4420).
If you have questions or require an additional copy of the Joint Proxy
Statement/Prospectus, please contact us at 45 Moulton Street, Cambridge,
Massachusetts 02138, Attention: Samuel K. Ackerman, M.D. at 617-864-4800.
By order of the Board of Directors,
Lynnette C. Fallon
Secretary
November , 1999
4
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law permits a Delaware
corporation to indemnify officers, directors, employees and agents for actions
taken in good faith and in a manner they reasonably believed to be in, or not
opposed to, the best interests of the corporation, and with respect to any
criminal action, which they had no reasonable cause to believe was unlawful.
The Delaware General Corporation Law provides that a corporation may pay
expenses (including attorneys' fees) incurred by an officer or director in
defending any civil, criminal, administrative or investigative action (upon
receipt of a written undertaking to reimburse the corporation if indemnification
is not appropriate), and must reimburse a successful defendant for expenses,
including attorney's fees, actually and reasonably incurred, and permits a
corporation to purchase and maintain liability insurance for its directors and
officers. The Delaware General Corporation Law provides that indemnification may
be made for any claim, issue or matter as to which a person has been adjudged by
a court of competent jurisdiction, after exhaustion of all appeals therefrom, to
be liable to the corporation, unless and only to the extent a court determines
that the person is entitled to indemnity for such expenses as the court deems
proper.
The Restated Certificate of Incorporation ("Certificate of Incorporation")
of V.I. Technologies ("VITEX") and the Amended and Restated By-laws ("By-laws")
of VITEX provide, among other things, that, to the fullest extent authorized by
the Delaware General Corporation Law, VITEX shall 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, is or was, or has agreed to become, a director or officer of
VITEX, or is or was serving, or has agreed to serve, at the request of VITEX, as
a director, officer or trustee of, or in a similar capacity with, another
corporation, partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees), judgments, fines, settlements, and other
amounts actually and reasonably incurred in connection with any such action,
suit or proceeding and any appeal therefrom
Article Tenth of the Certificate of Incorporation further provides that
indemnification may include payment by VITEX of expenses in defending an action
or proceeding in advance of the final disposition of such action or proceeding
upon receipt of an undertaking by the person indemnified to repay such payment
if it is ultimately determined that such person is not entitled to
indemnification. VITEX shall not indemnify any person seeking indemnification
in connection with a proceeding (or part thereof) initiated by such person
unless the initiation thereof was approved by the Board of Directors of VITEX.
Section 2 of the by-laws provide that VITEX shall have the power to
purchase and maintain insurance to insure the officers and directors of VITEX
against any liabilities incurred by them in the discharge of their functions as
such officers and directors. VITEX has purchased insurance which purports to
insure the officers and directors of VITEX against certain liabilities incurred
by them in the discharge of their functions as such officers and directors.
The Delaware General Corporation Law permits a Delaware corporation to
include a provision in its certificate of incorporation eliminating or limiting
the personal liability of any director to the corporation or its stockholders
for monetary damages for a breach of the director's fiduciary duty as a
director, except for liability (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) under Section 174 of the Delaware General Corporation Law, which
concerns unlawful payments of dividends, stock purchases or redemptions or (iv)
for any transaction from which the director derived an improper personal
benefit. Article Ninth of the Certificate of Incorporation contains provisions
limiting the liability of its directors, to the fullest extent currently
permitted by the Delaware General Corporation Law for monetary damages for
breach of their fiduciary duty as directors.
While these provisions provide directors with protection from awards for
monetary damages for breaches of their duty of care, they do not eliminate such
duty. Accordingly, these provisions will have no effect on the availability of
equitable remedies such as an injunction or rescission based on a director's
breach of his or her duty of care.
VITEX has entered into indemnity agreements (the "Indemnity Agreements")
with certain directors of VITEX. The Indemnity Agreements provide that VITEX
will pay any attorneys' fees and all other costs, expenses and obligations which
the indemnitee pays or incurs because of claims made against him or her by
reason of the fact that he or she is or was a director or officer of VITEX. The
payments to be made under the Indemnity Agreements include, but are not limited
to, expenses, judgments, fines, penalties and amounts paid in settlement
(including all interest, assessments and other charges paid or payable in
connection with or in respect of such expenses, judgments, fines, penalties of
amounts paid in settlement) of such claims, except VITEX is not obligated to
make any payment under the Indemnity Agreements which VITEX is
5
<PAGE>
prohibited by law from paying as indemnity, or where (a) indemnification is
provided to an indemnitee under an insurance policy, except for amounts in
excess of insurance coverage, and (b) the claim is one for which an indemnitee
is otherwise indemnified by VITEX. If so requested by the indemnitee, VITEX
shall advance all expenses to the indemnitee.
Under Section 5.08 of the Merger Agreement, for one year after the
effective time of the merger, VITEX is required to indemnify former directors
and officers of Pentose Pharmaceuticals, Inc. ("Pentose") against costs or
expenses (including attorney's fees), judgments, fines, losses, claims, damages,
liabilities and amounts paid in settlement in connection with any claim, action,
suit, proceeding or investigation arising out of any act or omissions in such
capacity [as officer or director] prior to the closing. Such indemnification
shall be to the extent provided under Pentose's certificate of incorporation and
by-laws in effect immediately prior to the effective time of the merger. If a
claim for indemnification asserted within the one year period, all rights to
indemnification in respect of such claim will continue until the disposition of
all such claims.
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) List of Exhibits
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<CAPTION>
Exhibit
Number Description
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<C> <S>
2 Agreement and Plan of Merger dated as of July 28, 1999 among the Company, Pentose and certain
stockholders of Pentose. Previously filed.
2.1 Amendment dated as of November 8, 1999 to Agreement and Plan of Merger dated as of July 28, 1999
among VITEX, Pentose and certain stockholders of Pentose. Filed herewith.
3.1 Restated Certificate of Incorporation of the Company. Filed as Exhibit 3.8 to the Registrant's
Registration Statement on Form S-1, as amended (Registration Statement No. 333-46933) and
incorporated herein by reference.
3.2 Amended and Restated By-laws of the Company. Filed as Exhibit 3.10 to the Registrant's
Registration Statement on Form S-1, as amended (Registration Statement No. 333-46933) and
incorporated herein by reference.
4.1 Specimen of Common Stock Certificate. Filed as Exhibit 4.1 to the Registrant's Registration
Statement on Form S-1, as amended (Registration Statement No. 333-46933) and incorporated herein
by reference.
4.2 Stock Warrant between the Company and Bear, Stearns & Co. Inc., dated April 29, 1997. Filed as
Exhibit 4.2 to the Registrant's Registration Statement on Form S-1, as amended (Registration
Statement No. 333-46933) and incorporated herein by reference.
4.3 Warrant to Purchase Common Stock between the Company and the Trustees of Columbia University in
the City of New York, dated June 21, 1996. Filed as Exhibit 4.3 to the Registrant's Registration
Statement on Form S-1, as amended (Registration Statement No. 333-46933) and incorporated herein
by reference.
5 Opinion of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. regarding the validity of the
securities being registered. Previously filed.
8.1 Form of opinion of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. regarding certain federal
income tax consequences relating to the merger. Previously filed.
8.2 Form of opinion of Palmer & Dodge LLP regarding certain federal income tax consequences relating
to the merger. Previously filed.
10.1* 1998 Equity Incentive Plan. Filed with the Registrant's Definitive Proxy Statement in Schedule
14A filed on April 16, 1999 and incorporated herein by reference.
10.2* 1998 Director Stock Option Plan. Filed with the Registrant's Definitive Proxy Statement in
Schedule 14A filed on April 16, 1999 and incorporated herein by reference.
10.3* 1998 Employee Stock Purchase Plan. Filed as Exhibit 10.3 to the Registrant's Registration
Statement on Form S-1, as amended (Registration Statement No. 333-46933) and incorporated herein
by reference.
</TABLE>
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<TABLE>
<CAPTION>
Exhibit
Number Description
- ------ -----------
<C> <S>
10.4+ Non-Exclusive License Agreement (#1) for Solvent Detergent Treated Blood Derived Therapeutic
Products between the Company and the New York Blood Center, Inc., dated September 21, 1995.
Filed as Exhibit 10.4 to the Registrant's Registration Statement on Form S-1, as amended
(Registration Statement No. 333-46933) and incorporated herein by reference.
10.5+ Non-Exclusive License Agreement (#2) for UV Treated Blood Derived Therapeutic Products between
the Company and the New York Blood Center, Inc., dated September 21, 1995. Filed as Exhibit 10.5
to the Registrant's Registration Statement on Form S-1, as amended (Registration Statement No.
333-46933) and incorporated herein by reference.
10.6+ Exclusive License Agreement (#3) for Virally Inactivated Transfusion Plasma Products between the
Company and the New York Blood Center, Inc., dated September 21, 1995, as amended on December 31,
1996 and July 1, 1997. Filed as Exhibit 10.6 to the Registrant's Registration Statement on
Form S-1, as amended (Registration Statement No. 333-46933) and incorporated herein by reference.
10.7+ Exclusive License Agreement (#4) for Virally Inactivated Fibrin Sealant/Thrombin Products between
the Company and the New York Blood Center, Inc., dated September 21, 1995, as amended on
September 27, 1996 and January 1, 1998. Filed as Exhibit 10.7 to the Registrant's Registration
Statement on Form S-1, as amended (Registration Statement No. 333-46933) and incorporated herein
by reference.
10.8+ Exclusive License Agreement (#5) for Virally Inactivated Cellular Products between the Company
and the New York Blood Center, Inc., dated September 21, 1995, as amended on February 16, 1998.
Filed as Exhibit 10.8 to the Registrant's Registration Statement on Form S-1, as amended
(Registration Statement No. 333-46933) and incorporated herein by reference.
10.9 Omnibus Agreement between the Company and the New York Blood Center, Inc., dated October 26,
1995. Filed as Exhibit 10.9 to the Registrant's Registration Statement on Form S-1, as amended
(Registration Statement No. 333-46933) and incorporated herein by reference.
10.10+ Exclusive Distribution Agreement between the Company and United States Surgical Corporation,
dated September 11, 1996, as amended on October 3, 1996. Filed as Exhibit 10.10 to the
Registrant's Registration Statement on Form S-1, as amended (Registration Statement No.
333-46933) and incorporated herein by reference.
10.11+ First Amended and Restated Agreement for Custom Processing between the Company and Bayer
Corporation, dated January 24, 1996. Filed as Exhibit 10.11 to the Registrant's Registration
Statement on Form S-1, as amended (Registration Statement No. 333-46933) and incorporated
herein by reference.
10.12+ Modification Agreement between the Company and Bayer Corporation, dated December 22, 1997. Filed
as Exhibit 10.12 to the Registrant's Registration Statement on Form S-1, as amended
(Registration Statement No. 333-46933) and incorporated herein by reference.
10.13++ Amended and Restated Supply, Manufacturing, and Distribution Collaboration Agreement between the
Company and the American National Red Cross, dated October 1, 1998. Filed as Exhibit 10.13 to
the Registrant's Registration on Form 10-K for the year ended January 2, 1999 and incorporated
herein by reference.
10.14+ Joint Development, Marketing and Distribution Agreement between the Company and Pall
Corporation, dated February 19, 1998. Filed as Exhibit 10.15 to the Registrant's Registration
Statement on Form S-1, as amended (Registration Statement No. 333-46933) and incorporated
herein by reference.
10.15+ Stock Purchase Agreement between Pall Corporation and the Company, dated February 19, 1998.
Filed as Exhibit 10.16 to the Registrant's Registration Statement on Form S-1, as amended
(Registration Statement No. 333-46933) and incorporated herein by reference.
10.16 Registration Rights Agreement between the Company and the Investors named therein, dated February
19, 1998. Filed as Exhibit 10.17 to the Registrant's Registration Statement on Form S-1, as
amended (Registration Statement No. 333-46933) and incorporated herein by reference.
</TABLE>
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<TABLE>
<CAPTION>
Exhibit
Number Description
- ------ -----------
<C> <S>
10.17 Facility Lease Agreement between the Company and Suffolk County Industrial Development Agency,
dated February 15, 1995. Filed as Exhibit 10.18 to the Registrant's Registration Statement on
Form S-1, as amended (Registration Statement No. 333-46933) and incorporated herein by reference.
10.18 Lease Agreement between the Company and Bayer Corporation, dated February 7, 1995. Filed as
Exhibit 10.19 to the Registrant's Registration Statement on Form S-1, as amended (Registration
Statement No. 333-46933) and incorporated herein by reference.
10.19 Sublease Agreement between the Company and Bayer Corporation, dated February 7, 1995. Filed as
Exhibit 10.20 to the Registrant's Registration Statement on Form S-1, as amended (Registration
Statement No. 333-46933) and incorporated herein by reference.
10.20 Security Agreement between the Company and Bayer Corporation, dated December 22, 1997. Filed as
Exhibit 10.21 to the Registrant's Registration Statement on Form S-1, as amended (Registration
Statement No. 333-46933) and incorporated herein by reference.
10.21 Lease between the Company and the Trustees of Columbia University in the City of New York, dated
June 21, 1996. Filed as Exhibit 10.22 to the Registrant's Registration Statement on Form S-1,
as amended (Registration Statement No. 333-46933) and incorporated herein by reference.
10.22+ Settlement Agreement between the Company and Bayer Corporation, dated July 1, 1997. Filed as
Exhibit 10.23 to the Registrant's Registration Statement on Form S-1, as amended (Registration
Statement No. 333-46933) and incorporated herein by reference.
10.23* Employment Agreement between the Company and Bernard Horowitz, dated January 15, 1998. Filed as
Exhibit 10.26 to the Registrant's Registration Statement on Form S-1, as amended (Registration
Statement No. 333-46933) and incorporated herein by reference.
10.24* Letter Agreement between the Company and John R. Barr, dated November 10, 1997. Filed as
Exhibit 10.27 to the Registrant's Registration Statement on Form S-1, as amended (Registration
Statement No. 333-46933) and incorporated herein by reference.
10.25* Memorandum from Rick Charpie to the Company's Vice Presidents, dated October 28, 1997. Filed as
Exhibit 10.28 to the Registrant's Registration Statement on Form S-1, as amended (Registration
Statement No. 333-46933) and incorporated herein by reference.
10.26 Credit Agreement between the Company and The Chase Manhattan Bank, dated December 22, 1997.
Filed as Exhibit 10.29 to the Registrant's Registration Statement on Form S-1, as amended
(Registration Statement No. 333-46933) and incorporated herein by reference.
10.27 Intercreditor Agreement among the Company, Bayer Corporation and The Chase Manhattan Bank, dated
December 22, 1997. Filed as Exhibit 10.30 to the Registrant's Registration Statement on Form
S-1, as amended (Registration Statement No. 333-46933) and incorporated herein by reference.
10.28 Mortgage and Security Agreement among the Company, Suffolk County Industrial Development Agency
and The Chase Manhattan Bank, dated December 22, 1997. Filed as Exhibit 10.31 to the
Registrant's Registration Statement on Form S-1, as amended (Registration Statement No.
333-46933) and incorporated herein by reference.
10.29 Guaranty and Collateral Agreement between the Company and The Chase Manhattan Bank, dated
December 22, 1997. Filed as Exhibit 10.32 to the Registrant's Registration Statement on Form
S-1, as amended (Registration Statement No. 333-46933) and incorporated herein by reference.
10.30 Mortgage, Security Agreement and Fixture Filing among the Company, Suffolk County Industrial
Development Agency and Bayer Corporation, dated February 15, 1995, as amended December 22, 1997.
Filed as Exhibit 10.33 to the Registrant's Registration Statement on Form S-1, as amended
(Registration Statement No. 333-46933) and incorporated herein by reference.
10.31 Form of Indemnification Agreement. Filed as Exhibit 10.34 to the Registrant's Registration
Statement on Form S-1, as amended (Registration Statement No. 333-46933) and incorporated herein
by reference.
</TABLE>
8
<PAGE>
<TABLE>
<CAPTION>
Exhibit
Number Description
- ------ -----------
<C> <S>
10.32 First and Second Amendments, each dated March 31, 1998, to the Omnibus Agreement (which was
previously filed as Exhibit 10.9). Filed as Exhibit 10.35 to the Registrant's Registration
Statement on Form S-1, as amended (Registration Statement No. 333-46933) and incorporated herein
by reference.
10.33 Amendment No. 1 to the Joint Development Marketing and Distribution Agreement between Pall
Corporation and the Company dated July 19, 1999. Filed as Exhibit 4.4 to the Registrant's Report
on Form 10-Q for the quarter ended July 3, 1999 and incorporated herein by reference.
10.34 Option, Development, Manufacture and License Agreement between Pentose Pharmaceuticals and the
Company dated October 2, 1998. Previously filed.
10.35* 6/24/98 Letter Agreement between the Company and Joanne Leonard, dated June 24, 1998. Previously
filed.
10.36* Letter Agreement between the Company and Thomas T. Higgins dated June 15, 1999. Previously filed.
10.37* Separation Agreement and General Release by and between the Company and Bernard Horowitz, Ph.D.
dated September 13, 1999. Previously filed.
23.1 Consent of KPMG LLP. Filed herewith.
23.2 Consent of Arthur Andersen LLP. Filed herewith.
23.3 Consent of PricewaterhouseCoopers LLP. Filed herewith.
23.4 Consent of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. (included in the opinion filed as
Exhibits 5 and 8.1 to this Registration Statement).
23.5 Consent of Palmer & Dodge LLP (included in the opinion filed as Exhibit 8.2 to this Registration
Statement).
24 Power of Attorney (contained in signature page previously filed).
99.1 Form of VITEX Proxy Card. Previously filed.
99.2 Form of Pentose Proxy. Filed herewith.
99.3 Consent of Dr. Samuel K. Ackerman to be named as a nominee for director of VITEX Corporation.
Previously filed.
99.4 Consent of Warburg Dillon Read LLC. Previously filed.
</TABLE>
__________
* Management contracts and compensatory plans or arrangements.
+ Certain confidential material contained in the document has been
omitted and filed separately with SEC pursuant to Rule 406 of the
Securities Act.
++ Certain confidential material contained in the document has been
omitted and filed separately with the SEC pursuant to Rule 24b-2
of the Securities Exchange Act of 1934, as amended.
9
<PAGE>
ITEM 22. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) That prior to any public reoffering of the securities registered
hereunder through use of a prospectus which is a part of this
registration statement, by any person or party who is deemed to be an
underwriter within the meaning of Rule 145(c), such reoffering
prospectus will contain the information called for by the applicable
registration form with respect to reofferings by persons who may be
deemed underwriters, in addition to the information called for by the
other items of the applicable form.
(2) That every prospectus (i) that is filed pursuant to paragraph (4)
immediately preceding, or (ii) that purports to meet the requirements
of Section 10(a)(3) of the Securities Act of 1933 and is used in
connection with an offering of securities subject to Rule 415, will be
filed as a part of an amendment to the registration statement and will
not be used until such amendment is effective, and that, for purposes
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 respond to requests for information that is incorporated by
reference into the Joint Proxy Statement/Prospectus pursuant to Item
4, 10(b), 11 or 13 of this form, within one business day of receipt of
such request, and to send the incorporated documents by first class
mail or other equally prompt means. This includes information
contained in documents filed subsequent to the effective date of the
registration statement through the date of responding to the request.
(4) To supply by means of a post-effective amendment all information
concerning a transaction, and VITEX being acquired involved therein,
that was not the subject of and included in the registration statement
when it became effective.
(b) 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 foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as
expressed in the 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.
10
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant has duly caused this Post-Effective Amendment No. 2 to the
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Melville, State of New York, on November 10,
1999.
V.I. TECHNOLOGIES, INC.
(Registrant)
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 Post-Effective Amendment No. 2 to the Registration Statement has been
signed below by the following persons in the capacities and on the dates
indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
* Chairman of the Board of Directors November 10, 1999
- -----------------------
David Tendler
/s/ John R. Barr President, Chief Executive Officer November 10, 1999
- ----------------------- (Principal Executive Officer)
John R. Barr Director
* Executive Vice President, Operations, November 10, 1999
- ----------------------- Treasurer and Chief Financial Officer
Thomas T. Higgins (Principal Financial Officer and
Principal Accounting Officer)
* Director November 10, 1999
- -----------------------
Richard A. Charpie
* Director November 10, 1999
- -----------------------
Jeremy Hayward-Surry
* Director November 10, 1999
- -----------------------
Bernard Horowitz, Ph.D
* Director November 10, 1999
- -----------------------
Irwin Lerner
* Director November 10, 1999
- -----------------------
Peter D. Parker
* Director November 10, 1999
- -----------------------
Damion E. Wicker, M.D.
*By: /s/ John R. Barr
------------------
John R. Barr
Attorney-in-Fact
</TABLE>
11
<PAGE>
EXHIBIT INDEX
(a) List of Exhibits
<TABLE>
<CAPTION>
Exhibit
Number Description
- ------ -----------
<C> <S>
2 Agreement and Plan of Merger dated as of July 28, 1999 among the Company, Pentose and certain
stockholders of Pentose. Previously filed.
2.1 Amendment dated as of November 8, 1999 to Agreement and Plan of Merger dated as of July 28, 1999
among VITEX, Pentose and certain stockholders of Pentose. Filed herewith.
3.1 Restated Certificate of Incorporation of the Company. Filed as Exhibit 3.8 to the Registrant's
Registration Statement on Form S-1, as amended (Registration Statement No. 333-46933) and
incorporated herein by reference.
3.2 Amended and Restated By-laws of the Company. Filed as Exhibit 3.10 to the Registrant's
Registration Statement on Form S-1, as amended (Registration Statement No. 333-46933) and
incorporated herein by reference.
4.1 Specimen of Common Stock Certificate. Filed as Exhibit 4.1 to the Registrant's Registration
Statement on Form S-1, as amended (Registration Statement No. 333-46933) and incorporated herein
by reference.
4.2 Stock Warrant between the Company and Bear, Stearns & Co. Inc., dated April 29, 1997. Filed as
Exhibit 4.2 to the Registrant's Registration Statement on Form S-1, as amended (Registration
Statement No. 333-46933) and incorporated herein by reference.
4.3 Warrant to Purchase Common Stock between the Company and the Trustees of Columbia University in
the City of New York, dated June 21, 1996. Filed as Exhibit 4.3 to the Registrant's Registration
Statement on Form S-1, as amended (Registration Statement No. 333-46933) and incorporated herein
by reference.
5 Opinion of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. regarding the validity of the
securities being registered. Previously filed.
8.1 Form of opinion of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. regarding certain federal
income tax consequences relating to the merger. Previously filed.
8.2 Form of opinion of Palmer & Dodge LLP regarding certain federal income tax consequences relating
to the merger. Previously filed.
10.1* 1998 Equity Incentive Plan. Filed with the Registrant's Definitive Proxy Statement in Schedule
14A filed on April 16, 1999 and incorporated herein by reference.
10.2* 1998 Director Stock Option Plan. Filed with the Registrant's Definitive Proxy Statement in
Schedule 14A filed on April 16, 1999 and incorporated herein by reference.
10.3* 1998 Employee Stock Purchase Plan. Filed as Exhibit 10.3 to the Registrant's Registration
Statement on Form S-1, as amended (Registration Statement No. 333-46933) and incorporated herein
by reference.
10.4+ Non-Exclusive License Agreement (#1) for Solvent Detergent Treated Blood Derived Therapeutic
Products between the Company and the New York Blood Center, Inc., dated September 21, 1995.
Filed as Exhibit 10.4 to the Registrant's Registration Statement on Form S-1, as amended
(Registration Statement No. 333-46933) and incorporated herein by reference.
10.5+ Non-Exclusive License Agreement (#2) for UV Treated Blood Derived Therapeutic Products between
the Company and the New York Blood Center, Inc., dated September 21, 1995. Filed as Exhibit 10.5
to the Registrant's Registration Statement on Form S-1, as amended (Registration Statement No.
333-46933) and incorporated herein by reference.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Exhibit
Number Description
- ------ -----------
<C> <S>
10.6+ Exclusive License Agreement (#3) for Virally Inactivated Transfusion Plasma Products between the
Company and the New York Blood Center, Inc., dated September 21, 1995, as amended on December 31,
1996 and July 1, 1997. Filed as Exhibit 10.6 to the Registrant's Registration Statement on
Form S-1, as amended (Registration Statement No. 333-46933) and incorporated herein by reference.
10.7+ Exclusive License Agreement (#4) for Virally Inactivated Fibrin Sealant/Thrombin Products between
the Company and the New York Blood Center, Inc., dated September 21, 1995, as amended on
September 27, 1996 and January 1, 1998. Filed as Exhibit 10.7 to the Registrant's Registration
Statement on Form S-1, as amended (Registration Statement No. 333-46933) and incorporated herein
by reference.
10.8+ Exclusive License Agreement (#5) for Virally Inactivated Cellular Products between the Company
and the New York Blood Center, Inc., dated September 21, 1995, as amended on February 16, 1998.
Filed as Exhibit 10.8 to the Registrant's Registration Statement on Form S-1, as amended
(Registration Statement No. 333-46933) and incorporated herein by reference.
10.9 Omnibus Agreement between the Company and the New York Blood Center, Inc., dated October 26,
1995. Filed as Exhibit 10.9 to the Registrant's Registration Statement on Form S-1, as amended
(Registration Statement No. 333-46933) and incorporated herein by reference.
10.10+ Exclusive Distribution Agreement between the Company and United States Surgical Corporation,
dated September 11, 1996, as amended on October 3, 1996. Filed as Exhibit 10.10 to the
Registrant's Registration Statement on Form S-1, as amended (Registration Statement No.
333-46933) and incorporated herein by reference.
10.11+ First Amended and Restated Agreement for Custom Processing between the Company and Bayer
Corporation, dated January 24, 1996. Filed as Exhibit 10.11 to the Registrant's Registration
Statement on Form S-1, as amended (Registration Statement No. 333-46933) and incorporated
herein by reference.
10.12+ Modification Agreement between the Company and Bayer Corporation, dated December 22, 1997. Filed
as Exhibit 10.12 to the Registrant's Registration Statement on Form S-1, as amended
(Registration Statement No. 333-46933) and incorporated herein by reference.
10.13++ Amended and Restated Supply, Manufacturing, and Distribution Collaboration Agreement between the
Company and the American National Red Cross, dated October 1, 1998. Filed as Exhibit 10.13 to
the Registrant's Registration on Form 10-K for the year ended January 2, 1999 and incorporated
herein by reference.
10.14+ Joint Development, Marketing and Distribution Agreement between the Company and Pall
Corporation, dated February 19, 1998. Filed as Exhibit 10.15 to the Registrant's Registration
Statement on Form S-1, as amended (Registration Statement No. 333-46933) and incorporated
herein by reference.
10.15+ Stock Purchase Agreement between Pall Corporation and the Company, dated February 19, 1998.
Filed as Exhibit 10.16 to the Registrant's Registration Statement on Form S-1, as amended
(Registration Statement No. 333-46933) and incorporated herein by reference.
10.16 Registration Rights Agreement between the Company and the Investors named therein, dated February
19, 1998. Filed as Exhibit 10.17 to the Registrant's Registration Statement on Form S-1, as
amended (Registration Statement No. 333-46933) and incorporated herein by reference.
10.17 Facility Lease Agreement between the Company and Suffolk County Industrial Development Agency,
dated February 15, 1995. Filed as Exhibit 10.18 to the Registrant's Registration Statement on
Form S-1, as amended (Registration Statement No. 333-46933) and incorporated herein by reference.
10.18 Lease Agreement between the Company and Bayer Corporation, dated February 7, 1995. Filed as
Exhibit 10.19 to the Registrant's Registration Statement on Form S-1, as amended (Registration
Statement No. 333-46933) and incorporated herein by reference.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Exhibit
Number Description
- ------ -----------
<C> <S>
10.19 Sublease Agreement between the Company and Bayer Corporation, dated February 7, 1995. Filed as
Exhibit 10.20 to the Registrant's Registration Statement on Form S-1, as amended (Registration
Statement No. 333-46933) and incorporated herein by reference.
10.20 Security Agreement between the Company and Bayer Corporation, dated December 22, 1997. Filed as
Exhibit 10.21 to the Registrant's Registration Statement on Form S-1, as amended (Registration
Statement No. 333-46933) and incorporated herein by reference.
10.21 Lease between the Company and the Trustees of Columbia University in the City of New York, dated
June 21, 1996. Filed as Exhibit 10.22 to the Registrant's Registration Statement on Form S-1,
as amended (Registration Statement No. 333-46933) and incorporated herein by reference.
10.22+ Settlement Agreement between the Company and Bayer Corporation, dated July 1, 1997. Filed as
Exhibit 10.23 to the Registrant's Registration Statement on Form S-1, as amended (Registration
Statement No. 333-46933) and incorporated herein by reference.
10.23* Employment Agreement between the Company and Bernard Horowitz, dated January 15, 1998. Filed as
Exhibit 10.26 to the Registrant's Registration Statement on Form S-1, as amended (Registration
Statement No. 333-46933) and incorporated herein by reference.
10.24* Letter Agreement between the Company and John R. Barr, dated November 10, 1997. Filed as
Exhibit 10.27 to the Registrant's Registration Statement on Form S-1, as amended (Registration
Statement No. 333-46933) and incorporated herein by reference.
10.25* Memorandum from Rick Charpie to the Company's Vice Presidents, dated October 28, 1997. Filed as
Exhibit 10.28 to the Registrant's Registration Statement on Form S-1, as amended (Registration
Statement No. 333-46933) and incorporated herein by reference.
10.26 Credit Agreement between the Company and The Chase Manhattan Bank, dated December 22, 1997.
Filed as Exhibit 10.29 to the Registrant's Registration Statement on Form S-1, as amended
(Registration Statement No. 333-46933) and incorporated herein by reference.
10.27 Intercreditor Agreement among the Company, Bayer Corporation and The Chase Manhattan Bank, dated
December 22, 1997. Filed as Exhibit 10.30 to the Registrant's Registration Statement on Form
S-1, as amended (Registration Statement No. 333-46933) and incorporated herein by reference.
10.28 Mortgage and Security Agreement among the Company, Suffolk County Industrial Development Agency
and The Chase Manhattan Bank, dated December 22, 1997. Filed as Exhibit 10.31 to the
Registrant's Registration Statement on Form S-1, as amended (Registration Statement No.
333-46933) and incorporated herein by reference.
10.29 Guaranty and Collateral Agreement between the Company and The Chase Manhattan Bank, dated
December 22, 1997. Filed as Exhibit 10.32 to the Registrant's Registration Statement on Form
S-1, as amended (Registration Statement No. 333-46933) and incorporated herein by reference.
10.30 Mortgage, Security Agreement and Fixture Filing among the Company, Suffolk County Industrial
Development Agency and Bayer Corporation, dated February 15, 1995, as amended December 22, 1997.
Filed as Exhibit 10.33 to the Registrant's Registration Statement on Form S-1, as amended
(Registration Statement No. 333-46933) and incorporated herein by reference.
10.31 Form of Indemnification Agreement. Filed as Exhibit 10.34 to the Registrant's Registration
Statement on Form S-1, as amended (Registration Statement No. 333-46933) and incorporated herein
by reference.
10.32 First and Second Amendments, each dated March 31, 1998, to the Omnibus Agreement (which was
previously filed as Exhibit 10.9). Filed as Exhibit 10.35 to the Registrant's Registration
Statement on Form S-1, as amended (Registration Statement No. 333-46933) and incorporated herein
by reference.
10.33 Amendment No. 1 to the Joint Development Marketing and Distribution Agreement between Pall
Corporation and the Company dated July 19, 1999. Filed as Exhibit 4.4 to the Registrant's Report
on Form 10-Q for the quarter ended July 3, 1999 and incorporated herein by reference.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Exhibit
Number Description
- ------ -----------
<C> <S>
10.34 Option, Development, Manufacture and License Agreement between Pentose Pharmaceuticals and the
Company dated October 2, 1998. Previously filed.
10.35* 6/24/98 Letter Agreement between the Company and Joanne Leonard, dated June 24, 1998. Previously
filed.
10.36* Letter Agreement between the Company and Thomas T. Higgins dated June 15, 1999. Previously filed.
10.37* Separation Agreement and General Release by and between the Company and Bernard Horowitz, Ph.D.
dated September 13, 1999. Previously filed.
23.1 Consent of KPMG LLP. Filed herewith.
23.2 Consent of Arthur Andersen LLP. Filed herewith.
23.3 Consent of PricewaterhouseCoopers LLP. Filed herewith.
23.4 Consent of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. (included in the opinion filed as
Exhibits 5 and 8.1 to this Registration Statement).
23.5 Consent of Palmer & Dodge LLP (included in the opinion filed as Exhibit 8.2 to this Registration
Statement).
24 Power of Attorney (contained in signature page previously filed).
99.1 Form of VITEX Proxy Card. Previously filed.
99.2 Form of Pentose Proxy. Filed herewith.
99.3 Consent of Dr. Samuel K. Ackerman to be named as a nominee for director of VITEX Corporation.
Previously filed.
99.4 Consent of Warburg Dillon Read LLC. Previously filed.
</TABLE>
__________
* Management contracts and compensatory plans or arrangements.
+ Certain confidential material contained in the document has been
omitted and filed separately with SEC pursuant to Rule 406 of the
Securities Act.
++ Certain confidential material contained in the document has been
omitted and filed separately with the SEC pursuant to Rule 24b-2
of the Securities Exchange Act of 1934, as amended.
<PAGE>
EXHIBIT 2.1
------------
EXECUTION COPY
AMENDMENT TO AGREEMENT AND PLAN OF MERGER
This Amendment to the Agreement and Plan of Merger (the "Amendment") is
made and entered into as of November 8, 1999, by and among V.I. Technologies,
Inc. ("Vitex"), a Delaware corporation, Pentose Pharmaceuticals, Inc.
("Pentose"), a Delaware corporation, and certain stockholders of Pentose
identified on the signature page hereto (the "Stockholders").
WHEREAS, Vitex, Pentose and the Stockholders entered into that certain
Agreement and Plan of Merger, dated as July 28, 1999 (the "Agreement"), and
desire to amend the Agreement as provided herein. Capitalized terms used herein
and not defined shall have the meanings set forth in the Agreement.
WHEREAS, the parties acknowledge that such parties are proceeding with the
Merger, in consideration of and reliance upon, among other things, the parties'
agreement to perform the terms of this Amendment.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants and conditions set forth below, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties to this Amendment hereby agree as follows:
1. CONVERSION OF STOCK.
Section 1.06(a) of the Agreement is hereby amended and restated in its
entirety to read as follows:
(a) Conversion of Securities. The "Merger Consideration" shall equal
------------------------
thirty-four percent (34%) of the issued and outstanding shares of Vitex Common
Stock immediately after the Effective Time, giving effect to the issuance of
shares of such stock pursuant to this Section 1.06(a) (the "Merger
Consideration"). At the Effective Time, each share of Pentose Common Stock and
of Pentose Preferred Stock (the "Shares") shall be entitled to receive the
number of validly issued, fully paid and nonassessable shares of Common Stock of
Vitex, $0.01 par value per share ("Vitex Common Stock") for each Share (each, an
"Exchange Ratio"), as follows:
(i) For each share of Pentose Common Stock, the Exchange Ratio
shall be the Merger Consideration multiplied by 0.29595 and divided by
the number of shares of Pentose Common Stock outstanding at the
Effective Time;
<PAGE>
(ii) For each share of Pentose Series A Preferred Stock, the
Exchange Ratio shall be the Merger Consideration multiplied by 0.42056
and divided by the number of shares of Pentose Series A Preferred
Stock outstanding at the Effective Time; and
(iii) For each share of Pentose Series B Preferred Stock, the
Exchange Ratio shall be the Merger Consideration multiplied by 0.28349
and divided by the number of Shares of Pentose Series B Preferred
Stock outstanding at the Effective Time.
For example, if the aggregate number of shares of Vitex Common Stock
outstanding immediately prior to the Merger is 12,508,204, and the numbers of
shares of Pentose Common and Preferred Stock outstanding immediately prior to
the Merger are as set forth in Section 2.02 of the Agreement, then the Merger
Consideration and the Exchange Ratios would be as follows:
Merger Consideration: 12,508,204 x = 0.66x
x = 18,951,825
0.34x = 6,443,621
Common Stock Exchange Ratio 6,443,621 x 0.29595 = 0.48936
-------------------
3,896,870
Series A Preferred Stock
Exchange Ratio: 6,443,621 x 0.42056 = 0.60221
-------------------
4,500,000
Series B Preferred Stock
Exchange Ratio: 6,443,621 x 0.28349 = 0.77504
-------------------
2,356,903
All calculations pursuant to this Agreement shall be rounded to the nearest
one-hundred thousandth (.00001), except for the calculation of Merger
Consideration, which shall be rounded up to the nearest whole number.
2. PENTOSE REPRESENTATIONS AND WARRANTIES AND DISCLOSURE SCHEDULES.
(a) The number of outstanding options under the Pentose Stock Option Plan,
as disclosed in Section 2.02 of the Merger Agreement shall be corrected to read
978,828 shares, to reflect the correction described in clauses (a)(i) and (iii)
on Schedule I hereto.
----------
(b) The Pentose Disclosure Schedule shall be modified as set forth on
Schedule I hereto.
- ----------
3. VITEX REPRESENTATIONS AND WARRANTIES; COVENANTS. Notwithstanding
anything to the contrary included in the Merger Agreement including, without
limitation, Sections 5.12 and 7.01(e) thereof, Vitex shall file a Notification
Form for Listing of Additional Shares together
2
<PAGE>
with the applicable fee covering Vitex Common Stock to be issued in the Merger
with Nasdaq within five (5) business days following the Effective Time.
4. SEVERABILITY. If any provision of this Amendment is deemed to be or
becomes invalid, illegal or unenforceable in any respect in any jurisdiction,
(a) such provision will be deemed amended to conform to applicable laws of such
jurisdiction so as to be valid and enforceable; (b) the validity, legality and
enforceability of such provision will not in any way be affected or impaired
thereby in any other jurisdiction; and (c) the remaining provisions of this
Amendment shall continue in force without being impaired or invalidated in any
way.
5. FULL FORCE AND EFFECT. Except as specifically amended by this
Amendment, the terms and conditions of the Agreement shall remain in full force
and effect.
6. SECTION HEADINGS. The descriptive section headings herein have been
inserted for convenience of reference only and shall not be deemed to be a part
of this Amendment.
7. GOVERNING LAW. This Amendment shall be governed by and construed in
accordance with the laws of the State of Delaware.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment to the
Agreement and Plan of Merger as of the date first written above.
PENTOSE PHARMACEUTICALS, INC.
By: /s/ Samuel K. Ackerman
-----------------------
Name: Samuel K. Ackerman
Title: President
V.I. TECHNOLOGIES, INC.
By: /s/ John R. Barr
----------------
Name: John R. Barr
Title: President
/s/ Samuel K. Ackerman
----------------------
Dr. Samuel K. Ackerman
3
<PAGE>
AMPERSAND SPECIALTY MATERIALS
AND CHEMICAL III LIMITED PARTNERSHIP
BY: ASMC-III MANAGEMENT COMPANY LIMITED
PARTNERSHIP
BY: ASMC-III MCLP, LLP, ITS GENERAL PARTNER
By: /s/ Richard A. Charpie
-----------------------
Name: Richard A. Charpie
Title: Managing General Partner
AMPERSAND SPECIALTY MATERIALS
AND CHEMICAL III COMPANION FUND
LIMITED PARTNERSHIP
BY: ASMC-III MANAGEMENT COMPANY LIMITED
PARTNERSHIP
BY: ASMC-III MCLP, LLP, ITS GENERAL PARTNER
By: /s/ Richard A. Charpie
-----------------------
Name: Richard A. Charpie
Title: Managing General Partner
4
<PAGE>
Exhibit 23.1
The Board of Directors
V.I. Technologies, Inc.:
We consent to the use of our report dated January 15, 1999 included herein and
to the reference to our firm under the heading "Experts" in the prospectus.
/s/ KPMG LLP
KPMG LLP
Melville, New York
November 10, 1999
<PAGE>
ARTHUR ANDERSEN LLP
Exhibit 23.2
Consent of Independent Public Accountants
-----------------------------------------
As independent public accountants, we hereby consent to the use of our report
and to all references to our Firm included in or made a part of this Joint Proxy
Statement/Prospectus.
/s/ Arthur Anderson LLP
Arthur Andersen LLP
Boston, Massachusetts
November 8, 1999
<PAGE>
Exhibit 23.3
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the use in this Registration Statement on Form S-4 of V.I.
Technologies, Inc. of our report dated May 1, 1998, except as to the information
in Note 3 for which the date is July 15, 1998, relating to the financial
statements of Pentose Pharmaceuticals Inc. for the years ended December 31, 1997
and 1996, which appears in such Registration Statement. We also consent to the
references to us under the headings "Experts" in such Registration Statement.
/s/ PricewaterhouseCoopers LLP
Boston, Massachusetts
November 8, 1999
<PAGE>
EXHIBIT 99.2
------------
PROXY
NOVEMBER 1999 FORM
PENTOSE PHARMACEUTICALS, INC.
PROXY FOR SPECIAL MEETING OF STOCKHOLDERS
TO BE HELD NOVEMBER 12, 1999
THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS
The undersigned, having received the Notice of Special Meeting and the Joint
Proxy Statement/Prospectus as supplemented by a Joint Proxy Statement/Prospectus
Supplement dated November __, 1999, hereby appoints Samuel K. Ackerman, M.D.,
Lynnette C. Fallon, and Yukari Perrella and each of them, attorneys and proxies
for the undersigned (with full power of substitution) to vote all shares of
Pentose capital stock standing in the name of the undersigned at the special
meeting to be held on November 12, 1999 at 10 a.m. local time at the offices of
Palmer & Dodge LLP located at One Beacon Street, Boston, Massachusetts or at any
adjournment or postponement thereof, in the manner designated below.
When properly executed, this proxy will be voted in the manner directed herein
by the undersigned stockholder. If no direction is made, this proxy will grant
authority to vote "FOR" the proposal set forth below.
IF YOU WISH TO VOTE IN ACCORDANCE WITH THE BOARD OF
DIRECTORS' RECOMMENDATIONS, JUST SIGN ON THE BOTTOM OF THIS PROXY; YOU NEED NOT
MARK ANY BOXES.
[X] PLEASE MARK VOTES AS IN
THIS EXAMPLE
1. To approve and adopt the Agreement and Plan of Merger and Reorganization,
dated July 28, 1999, as amended as of November 8, 1999, among Pentose, V.I.
Technologies, Inc. and certain stockholders of Pentose, pursuant to which
Pentose will merge directly with and into V.I. Technologies. In the merger,
each share of Pentose preferred stock and Pentose common stock, par value
$0.001 per share, will be exchanged for a fraction of a share of V.I.
Technologies common stock, par value $0.01 per share, unless the holder
exercises appraisal rights under Delaware law. The fraction will be
determined immediately prior to completion of the merger according to the
formulas for each series of preferred stock and common stock specified in the
merger agreement and described in the Joint Proxy Statement/Prospectus, as
supplemented. adoption of the merger agreement will also constitute approval
of the merger and the other transactions contemplated by the merger
agreement.
[ ] [ ] [ ]
FOR AGAINST ABSTAIN
2. In the discretion of Samuel K. Ackerman, M.D., Lynnette C. Fallon or Yukari
Perrella on any other business matters or proposals as may properly come
before the special meeting or any adjournment or postponement thereof.
MARK HERE FOR ADDRESS [ ] CHANGE AND NOTE AT RIGHT
PLEASE SIGN AND PRINT YOUR NAME. Joint owners should each sign. When signing as
attorney, executor, administrator, trustee or guardian, please give full title
as such.
SIGNATURE: DATE
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PRINT NAME:
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SIGNATURE: DATE
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PRINT NAME:
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Postage Prepaid Envelope Enclosed
