Exhibit 99.1
(PIPE TRANSACTIONS)
V.I. TECHNOLOGIES, INC. SHARE PURCHASE AGREEMENT
This Share Purchase Agreement (this "Agreement"), is made and entered into as of
March 1, 2001, by and among V.I. Technologies, Inc., a Delaware corporation (the
"Company"), and the purchasers listed on Schedule A attached hereto
(collectively, the "Purchasers" and individually, a "Purchaser").
1. Authorization of Sale of the Shares
Subject to the terms and conditions of this Agreement, the Company has
authorized the sale of up to 1,666,667 shares (the "Shares") of common stock,
par value $.01 per share (the "Common Stock"), of the Company.
2. Agreement to Sell and Purchase the Shares
2.1 Purchase and Sale
Subject to the terms and conditions of this Agreement, each Purchaser severally
agrees to purchase, and the Company agrees to sell and issue to each Purchaser,
at the Closing (as defined below) that number of Shares set forth opposite such
Purchaser's name on Schedule A attached hereto.
2.2 Purchase Price
The purchase price of each Share (the "Per Share Price") shall be $6.00. The
Company will not, for ninety (90) days after the Closing Date (as defined below)
without adjusting the Per Share Price hereunder accordingly, sell (i) Shares at
a price per share of less than $6.00, or (ii) options, warrants or any other
securities that can be converted into, or otherwise exchanged for, shares of the
Company's common stock at a conversion or exercise price per share less than
$6.00 (other than options granted to employees and directors in accordance with
past practice with an exercise price equal to the fair market value of the
Company's Common Stock on the date of grant). In the event the Company shall,
during the period beginning on the date of this Agreement and ending ninety (90)
days after the Closing Date, sell any shares of the Company's common stock or
any instruments that can be converted into or otherwise exchanged for the
Company's common stock (the "Subsequent Sale") exercisable at a price per share
(the "Subsequent Purchase Price") of less than $6.00 per share (other than
options granted to employees and directors in accordance with past practice with
an exercise price equal to the fair market value of the Company's Common Stock
on the date of grant), the purchase price per Share hereunder shall be adjusted
to an amount equal to the Subsequent Purchase Price, such that the Company
shall, within ten (10) business days of the Subsequent Sale, pay to the
Purchaser an amount equal to the number of Shares times the difference between
$6.00 and the Subsequent Purchase Price.
3. Delivery of the Shares at the Closing
(a) The completion of the purchase and sale of the Shares (the "Closing")
shall occur at the offices of Xxxxxx & Dodge LLP, at Xxx Xxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000 at 9:00 a.m. local time on March 2, 2001 or such other time
and date as may be agreed by the parties (the "Closing Date").
(b) At the Closing, the Company shall authorize its transfer agent (the
"Transfer Agent") to issue to each Purchaser one or more stock certificates
registered in the name of such Purchaser, or in such nominee name(s) as
designated by such Purchaser in writing, representing the number of Shares set
forth in Section 2 above and bearing an appropriate legend referring to the fact
that the Shares were sold in reliance upon the exemption from registration
provided by Section 4(2) of the Securities Act of 1933, as amended (the
"Securities Act"), and Rule 506 under the Securities Act. The Company will
deliver one certificate representing 80% of number of purchased Shares and one
certificate representing 20% of number of purchased Shares (the "Certificates")
against delivery of payment for the Shares by the Purchasers. Prior to the
Purchasers' delivery of payment for the Shares, the Company will deliver via
facsimile a copy of
2.
the Certificates to be delivered upon Closing to the office of the Purchasers
(at the fax number indicated on the signature pages attached hereto).
(c) The Company's obligation to complete the purchase and sale of the
Shares shall be subject to the following conditions, any one or more of which
may be waived by the Company:
(i) receipt by the Company of same-day funds in the full amount of
the purchase price for the Shares being purchased under this Agreement; and
(ii) the accuracy in all material respects of the representations
and warranties made by the Purchasers and the fulfillment in all material
respects of those undertakings of the Purchasers to be fulfilled before the
Closing.
(d) The Purchasers' obligations to accept delivery of such stock
certificates and to pay for the Shares evidenced by the certificates shall be
subject to the following conditions, any one or more of which may be waived by a
Purchaser with respect to such Purchaser's obligation:
(i) the representations and warranties made by the Company in this
Agreement shall be accurate in all material respects and the undertakings of the
Company shall have been fulfilled in all material respects on or before the
Closing;
(ii) the Company shall have delivered to the Purchasers a
certificate executed by the chairman of the board or president and the chief
financial or accounting officer of the Company, dated the Closing Date, in form
and substance reasonably satisfactory to the Purchasers, to the effect that the
representations and warranties of the Company set forth in Section 4 hereof are
true and correct in all material respects as of the date of this Agreement and
as of the Closing Date, and that the Company has complied with all the
agreements and satisfied all the conditions in this Agreement on its part to be
performed or satisfied on or before the Closing Date; and
(iii) the Company shall have delivered to Purchasers a legal opinion
reasonably acceptable to the Purchasers.
4. Representations, Warranties and Covenants of the Company
Except as set forth on the Schedule of Exceptions attached hereto as Exhibit B,
the Company hereby represents and warrants to the Purchasers as follows (which
representations and warranties shall be deemed to apply, where appropriate, to
each subsidiary of the Company):
4.1 Organization and Qualification
The Company has been duly incorporated and is validly existing as a corporation
in good standing under the laws of the State of Delaware. The Company has the
corporate power and authority to own, lease and operate its properties and to
conduct its business as currently conducted and to enter into and perform its
obligations under this Agreement. The Company is duly qualified as a foreign
corporation to transact business and is in good
3.
standing in each jurisdiction in which such qualification is required, whether
by reason of the ownership or leasing of property or the conduct of business,
except where the failure to so qualify would not, singly or in the aggregate,
have a material adverse effect on the condition, financial or otherwise, or the
earnings, assets, business affairs or business prospects of the Company.
4.2 Capitalization
(a) The authorized capital stock of the Company consists of 35,000,000
shares of Common Stock and 1,000,000 shares of Preferred Stock.
(b) As of February 28, 2001, the issued and outstanding capital stock of
the Company consists of 20,797,887 shares of Common Stock. The shares of issued
and outstanding capital stock of the Company have been duly authorized and
validly issued, are fully paid and nonassessable and have not been issued in
violation of or are not otherwise subject to any preemptive or other similar
rights.
(c) The Company has reserved 4,150,000 shares of Common Stock for issuance
upon the exercise of stock options granted or available for future grant under
the Company's 1998 Equity Incentive Plan and 1998 Director Stock Option Plan.
(d) The Company has reserved 15,812 shares of Common Stock for issuance
upon the exercise of outstanding warrants to purchase Common Stock.
With the exception of the foregoing, there are no outstanding subscriptions,
options, warrants, convertible or exchangeable securities or other rights
granted to or by the Company to purchase shares of Common Stock or other
securities of the Company and there are no commitments, plans or arrangements to
issue any shares of Common Stock or any security convertible into or
exchangeable for Common Stock.
4.
4.3 Issuance, Sale and Delivery of the Shares
(a) The Shares have been duly authorized for issuance and sale to the
Purchasers pursuant to this Agreement and, when issued and delivered by the
Company pursuant to this Agreement against payment of the consideration set
forth in this Agreement, will be validly issued and fully paid and nonassessable
and free and clear of all pledges, liens and encumbrances. The certificates
evidencing the Shares are in due and proper form under Delaware law.
(b) The issuance of the Shares is not subject to preemptive or other
similar rights. No further approval or authority of the shareholders or the
Board of Directors of the Company will be required for the issuance and sale of
the Shares to be sold by the Company as contemplated in this Agreement.
(c) Subject to the accuracy of the Purchasers' representations and
warranties in Section 5 of this Agreement and the filing of a Form D with the
Securities and Exchange Commission with respect to the issuance of the shares
which will be made after the issuance of the Shares, the offer, sale, and
issuance of the Shares in conformity with the terms of this Agreement constitute
transactions exempt from the registration requirements of Section 5 of the
Securities Act and from the registration or qualification requirements of the
laws of any applicable state or United States jurisdiction.
4.4 Financial Statements
The financial statements included (as exhibits or otherwise) in the Company
Documents (as defined below) present fairly the financial position of the
Company as of the dates indicated and the results of their operations for the
periods specified. Except as otherwise stated in such Company Documents, such
financial statements have been prepared in conformity with United States
generally accepted accounting principles applied on a consistent basis (except
for interim financial statements, which do not contain all necessary footnotes
required by generally accepted accounting principals and which may contain non-
recurring charges which management does not believe are material), and any
supporting schedules included with the financial statements present fairly the
information stated in the financial statements. The financial and statistical
data set forth in the Company Documents were prepared on an accounting basis
consistent with such financial statements.
4.5 No Material Change
Since September 30, 2000,
(a) there has been no material adverse change or any development involving
a prospective material adverse change in or affecting the condition, financial
or otherwise, or in the earnings, assets, business affairs or business prospects
of the Company, whether or not arising in the ordinary course of business;
(b) there have been no transactions entered into by the Company other than
those in the ordinary course of business, which are material with respect to the
Company; and
5.
(c) there has been no dividend or distribution of any kind declared, paid
or made by the Company on any class of its capital stock.
The Company has no material contingent obligations.
4.6 Environmental
Except as would not, singly or in the aggregate, reasonably be expected to have
a material adverse effect on the condition, financial or otherwise, or the
earnings, assets, business affairs or business prospects of the Company,
(a) the Company is in compliance with all applicable Environmental Laws
(as defined below);
(b) the Company has all permits, authorizations and approvals required
under any applicable Environmental Laws and is in compliance with the
requirements of such permits authorizations and approvals;
(c) the Company has not received notice of any pending or, to the best
knowledge of the Company, there are no threatened Environmental Claims (as
defined below) against the Company; and
(d) under applicable law, there are no circumstances with respect to any
property or operations of the Company that are reasonably likely to form the
basis of an Environmental Claim against the Company.
For purposes of this Agreement, the following terms shall have the following
meanings: "Environmental Law" means any United States (or other applicable
jurisdiction's) Federal, state, local or municipal statute, law, rule,
regulation, ordinance, code, policy or rule of common law and any judicial or
administrative interpretation thereof, including any judicial or administrative
order, consent decree or judgment, relating to the environment, health, safety
or any chemical, material or substance, exposure to which is prohibited, limited
or regulated by any governmental authority. "Environmental Claims" means any
and all administrative, regulatory or judicial actions, suits, demands, demand
letters, claims, liens, notices of noncompliance or violation, investigations or
proceedings relating in any way to any Environmental Law.
4.7 No Defaults
The Company is not in violation of its certificate of incorporation or bylaws or
in material default in the performance or observance of any obligation,
agreement, covenant or condition contained in any material contract, indenture,
mortgage, loan agreement, deed, trust, note, lease, sublease, voting agreement,
voting trust, or other instrument or material agreement to which the Company is
a party or by which it may be bound, or to which any of the property or assets
of the Company is subject.
6.
4.8 Labor Matters
No labor dispute with the employees of the Company exists or, to the best
knowledge of the Company, is imminent.
4.9 No Actions
There is no action, suit or proceeding before or by any court or governmental
agency or body, domestic or foreign, now pending, or, to the knowledge of the
Company, threatened, against or, to the best knowledge of the Company, affecting
the Company which, singly or in the aggregate, might result in any material
adverse change in the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Company, or which, singly or in
the aggregate, might materially and adversely affect the properties or assets
thereof or which might materially and adversely affect the consummation of this
Agreement, nor, to the best knowledge of the Company, is there any reasonable
basis therefor. The Company is not in default with respect to any judgment,
order or decree of any court or governmental agency or instrumentality which,
singly or in the aggregate, would have a material adverse effect on the assets,
properties or business of the Company.
4.10 Intellectual Property
(a) The Company, to the best of its knowledge in the course of diligent
inquiry, owns or is licensed to use all patents, patent applications,
inventions, trademarks, trade names, applications for registration of
trademarks, service marks, service xxxx applications, copyrights, know-how,
manufacturing processes, formulae, trade secrets, licenses and rights in any
thereof and any other intangible property and assets that are material to the
business of the Company as now conducted (in this Agreement called the
"Proprietary Rights"), and has, is seeking, or will seek, to obtain rights to
use such Proprietary Rights that are material to the business of the Company as
proposed to be conducted.
(b) The Company does not have any knowledge of, and the Company has not
given or received any notice of, any pending conflicts with or infringement of
the rights of others with respect to any Proprietary Rights or with respect to
any license of Proprietary Rights which are material to the business of the
Company.
(c) No action, suit, arbitration, or legal, administrative or other
proceeding, or investigation is pending, or, to the best knowledge of the
Company, threatened, which involves any Proprietary Rights, nor, to the best
knowledge of the Company, is there any reasonable basis therefor.
(d) The Company is not subject to any judgment, order, writ, injunction or
decree of any court or any Federal, state, local, foreign or other governmental
department, commission, board, bureau, agency or instrumentality, domestic or
foreign, or any arbitrator, and has not entered into or is not a party to any
contract which, restricts or impairs the use of any such Proprietary Rights in a
manner which would have a material adverse effect on the use of any of the
Proprietary Rights.
7.
(e) The Company has not received written notice of any pending conflict
with or infringement upon such third-party proprietary rights.
(f) The Company has not entered into any consent, indemnification,
forbearance to xxx or settlement agreement with respect to Proprietary Rights
other than in the ordinary course of business. No claims have been asserted by
any person in writing to the Company with respect to the validity of the
Company's ownership or right to use the Proprietary Rights and, to the best
knowledge of the Company, there is no reasonable basis for any such claim to be
successful.
(g) The Company has complied, in all material respects, with its
obligations relating to the protection of the Proprietary Rights which are
material to the business of the Company used pursuant to licenses.
(h) To the best knowledge of the Company, no person is infringing on or
violating the Proprietary Rights.
4.11 Permits
The Company possesses and is operating in compliance with all material licenses,
certificates, consents, authorities, approvals and permits from all state,
federal, foreign and other regulatory agencies or bodies necessary to conduct
the businesses now operated by it, and the Company has not received any notice
of proceedings relating to the revocation or modification of any such permit or
any circumstance which would lead it to believe that such proceedings are
reasonably likely which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would materially and adversely affect
the condition, financial or otherwise, or the earnings, assets, business affairs
or business prospects of the Company.
4.12 Due Execution, Delivery and Performance
(a) This Agreement has been duly executed and delivered by the Company and
constitutes a valid and binding obligation of the Company, enforceable against
the Company in accordance with its terms, except as enforcement may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting the rights of creditors generally and except insofar as
the availability of equitable remedies may be limited by applicable law.
(b) The execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated in this Agreement and the
fulfillment of the terms of this Agreement have been duly authorized by all
necessary corporate action and will not conflict with or constitute a breach of,
or default under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company pursuant to, any material
contract, indenture, mortgage, loan agreement, deed, trust, note, lease,
sublease, voting agreement, voting trust or other instrument or agreement to
which the Company is a party or by which it may be bound, or to which any of the
property or assets of the Company is subject, and will not trigger anti-dilution
rights or other rights to acquire additional equity securities of the Company,
nor will such action result in any violation of the provisions of the
certificate of
8.
incorporation or bylaws of the Company or any applicable statute, law, rule,
regulation, ordinance, decision, directive or order.
4.13 Properties
The Company has good and marketable title to all of its properties owned by it,
free and clear of all material security interests, mortgages, pledges, liens,
charges, encumbrances and claims of record. The properties of the Company are,
in the aggregate, in good repair (reasonable wear and tear excepted), and
suitable for their respective uses. Any real property held under lease by the
Company is held under valid, subsisting and enforceable leases with such
exceptions as are not material and do not interfere with the conduct of the
business of the Company. The Company owns or leases all such properties as are
necessary to its business or operations as now conducted.
4.14 Compliance
The Company has conducted and is conducting its business in compliance with all
applicable Federal, state, local and foreign statutes, laws, rules, regulations,
ordinances, codes, decisions, decrees, directives and orders, except where the
failure to do so would not, singly or in the aggregate, have a material adverse
effect on the condition, financial or otherwise, or on the earnings, assets,
business affairs or business prospects of the Company.
4.15 Security Measures
The Company takes security measures designed to enable the Company to assert
trade secret protection in its non-patented technology.
4.16 Contributions
To the best of the Company's knowledge, neither the Company nor any employee or
agent of the Company has made any payment of funds of the Company or received or
retained any funds in violation of any law, rule or regulation.
4.17 Use of Proceeds; Investment Company
The Company intends to use the proceeds from the sale of the Shares for working
capital and other general corporate purposes. The Company is not now, and after
the sale of the Shares under this Agreement and under all other agreements and
the application of the net proceeds from the sale of the Shares described in the
proceeding sentence will not be, an "investment company" within the meaning of
the Investment Company Act of 1940, as amended.
4.18 Prior Offerings
All offers and sales of capital stock of the Company before the date of this
Agreement were at all relevant times duly registered or exempt from the
registration requirements of the Securities Act and were duly registered or
subject to an available exemption from the registration requirements of the
applicable state securities or Blue Sky laws.
9.
4.19 Taxes
The Company has filed all material tax returns required to be filed, which
returns are true and correct in all material respects, and the Company is not in
default in the payment of any taxes, including penalties and interest,
assessments, fees and other charges, shown thereon due or otherwise assessed,
other than those being contested in good faith and for which adequate reserves
have been provided or those currently payable without interest which were
payable pursuant to said returns or any assessments with respect thereto.
4.20 Other Governmental Proceedings
To the Company's knowledge, there are no rulemaking or similar proceedings
before any Federal, state, local or foreign government bodies that involve or
affect the Company, which, if the subject of an action unfavorable to the
Company, could involve a prospective material adverse change in or effect on the
condition, financial or otherwise, or in the earnings, assets, business affairs
or business prospects of the Company.
4.21 Non-Competition Agreements
To the knowledge of the Company, any full-time employee who has entered into any
non-competition, non-disclosure, confidentiality or other similar agreement with
any party other than the Company is neither in violation of nor is expected to
be in violation of that agreement as a result of the business currently
conducted or expected to be conducted by the Company or such person's
performance of his or her obligations to the Company. The Company has not
received written notice that any consultant or scientific advisor of the Company
is in violation of any non-competition, non-disclosure, confidentiality or
similar agreement.
4.22 Transfer Taxes
On the Closing Date, all stock transfer or other taxes (other than income taxes)
that are required to be paid in connection with the sale and transfer of the
Shares to be sold to the Purchasers under this Agreement will be, or will have
been, fully paid or provided for by the Company and all laws imposing such taxes
will be or will have been fully complied with.
4.23 Insurance
The Company maintains insurance of the type and in the amount that the Company
reasonably believes is adequate for its business, including, but not limited to,
insurance covering all real and personal property owned or leased by the Company
against theft, damage, destruction, acts of vandalism and all other risks
customarily insured against by similarly situated companies, all of which
insurance is in full force and effect.
4.24 Governmental Consents
No registration, authorization, approval, qualification or consent of any court
or governmental authority or agency is necessary in connection with the
execution and delivery of this Agreement or the offering, issuance or sale of
the Shares under this Agreement other
10.
than the filing of a Form D with the Securities and Exchange Commission (the
"Commission") with respect to the issuance of the Shares, which filing will be
timely made after the issuance of the Shares.
4.25 Securities and Exchange Commission Filings
The Company has timely filed with the Commission all documents required to be
filed by the Company under the Exchange Act of 1934, as amended (the "Exchange
Act.")
4.26 Additional Information
The Company represents and warrants that the information contained in the
following documents (the "Company Documents"), which will be provided to
Purchaser before the Closing, is or will be true and correct in all material
respects as of their respective final dates:
(a) the Company's Annual Report on Form 10-K for the fiscal year ended
January 1, 2000;
(b) the Company's Quarterly Reports on Form 10-Q for the fiscal quarters
ended April 1, 2000, July 1, 2000 and September 30, 2000;
(c) the Company's Proxy Statement for its 2000 Annual Meeting of
Shareholders; and
(d) all other documents, if any, filed by the Company with the Commission
since January 1, 2000 pursuant to the reporting requirements of the Securities
Exchange Act.
4.27 Contracts
The contracts described in the Company Documents or incorporated by reference
therein are in full force and effect on the date hereof, except for contracts
the termination or expiration of which would not, singly or in the aggregate,
have a material adverse effect on the business, properties or assets of the
Company. Neither the Company nor, to the best knowledge of the Company, any
other party is in material breach of or default under any such contracts.
4.28 No Integrated Offering
Neither the Company, nor any of its affiliates, nor any person acting on its or
their behalf, has directly or indirectly made any offers or sales in any
security or solicited any offers to buy any security under circumstances that
would require registration under the Securities Act of the issuance of the
Shares to the Purchasers. The issuance of the Shares to the Purchasers will not
be integrated with any other issuance of the Company's securities (past, current
or future) for purposes of the Securities Act or any applicable rules of Nasdaq.
The Company will not make any offers or sales of any security (other than the
Shares) that would cause the offering of the Shares to be integrated with any
other offering of securities by the Company for purposes of any registration
requirement under the Securities Act or
11.
any applicable rules of Nasdaq.
5. Representations, Warranties and Covenants of the Purchasers
5.1 Securities Law Representations and Warranties
Each Purchaser represents, warrants and covenants to the Company as follows:
(a) The Purchaser is knowledgeable, sophisticated and experienced in
making, and is qualified to make, decisions with respect to investments in
shares representing an investment decision like that involved in the purchase of
the Shares, including investments in securities issued by the Company and
companies similar to the Company, and has requested, received, reviewed and
considered all information it deems relevant in making an informed decision to
purchase the Shares.
(b) The Purchaser is acquiring the number of Shares set forth in Section 2
above in the ordinary course of its business and for its own account for
investment only, and has no present intention of distributing any of the Shares
nor any arrangement or understanding with any other persons regarding the
distribution of such Shares within the meaning of the Securities Act, other than
as contemplated in Section 7 of this Agreement.
(c) The Purchaser will not, directly or indirectly, offer, sell, pledge,
transfer or otherwise dispose of (or solicit any offers to buy, purchase or
otherwise acquire or take a pledge of) any of the Shares except in compliance
with the Securities Act and the rules and regulations promulgated thereunder
(the "Rules and Regulations").
(d) The Purchaser has completed or caused to be completed the Stock
Certificate Questionnaire and the Registration Statement Questionnaire, attached
to this Agreement as Appendices I and II, for use in preparation of the
Registration Statement (as defined in Section 7.3 below), and the answers to the
Questionnaires are true and correct as of the date of this Agreement and will be
true and correct as of the effective date of the Registration Statement;
provided that the Purchasers shall be entitled to update such information by
providing notice thereof to the Company before the effective date of such
Registration Statement.
(e) The Purchaser has, in connection with its decision to purchase the
number of Shares set forth in Section 2 above, relied solely upon the Company
Documents and the representations and warranties of the Company contained in
this Agreement.
(f) The Purchaser is an "accredited investor" within the meaning of Rule
501 of Regulation D promulgated under the Securities Act and has completed and
returned the Investor Questionnaire previously provided by the Company.
5.2 Resales of Shares
(a) The Purchaser hereby covenants with the Company not to make any sale
of the Shares without satisfying the requirements of the Securities Act and the
Rules and Regulations, including, in the event of any resale under the
Registration Statement, the prospectus delivery requirements under the
Securities Act, and the Purchaser acknowledges and agrees that such
12.
Shares are not transferable on the books of the Company pursuant to a resale
under the Registration Statement unless the certificate submitted to the
transfer agent evidencing the Shares is accompanied by a separate officer's
certificate
(i) in the form of Appendix III to this Agreement;
(ii) executed by an officer of, or other authorized person
designated by, the Purchaser; and
(iii) to the effect that (A) the Shares have been sold in accordance
with the Registration Statement and (B) the requirement of delivering a current
prospectus has been satisfied.
(b) The Purchaser acknowledges that there may occasionally be times when
the Company determines the use of the prospectus forming a part of the
Registration Statement (the "Prospectus," as further defined in Section 7.3.1
below) should be suspended until such time as an amendment or supplement to the
Registration Statement or the Prospectus has been filed by the Company and any
such amendment to the Registration Statement is declared effective by the
Commission, or until such time as the Company has filed an appropriate report
with the Commission pursuant to the Exchange Act. The Purchaser hereby
covenants that it will not sell any Shares pursuant to the Prospectus during the
period commencing at the time at which the Company gives the Purchaser written
notice of the suspension of the use of the Prospectus and ending at the time the
Company gives the Purchaser written notice that the Purchaser may thereafter
effect sales pursuant to the Prospectus. The Company may, upon written notice to
the Purchasers, suspend the use of the Prospectus for up to sixty (60) days in
any 365-day period based on the reasonable determination by the Company that
there is a significant business purpose for such determination, such as pending
corporate developments, public filings with the SEC or similar events. The
Company shall in no event be required to disclose the business purpose for which
it has suspended the use of the Prospectus if the Company determines in its good
faith judgment that the business purpose should remain confidential. In
addition, the Company shall notify each Purchaser (i) of any request by the SEC
for an amendment or any supplement to such Registration Statement or any related
prospectus, or any other information request by any other governmental agency
directly relating to the offering, and (ii) of the issuance by the SEC of any
stop order suspending the effectiveness of such Registration Statement or of any
order preventing or suspending the use of any related prospectus or the
initiation or threat of any proceeding for that purpose.
(c) The Purchaser further covenants to notify the Company promptly of the
sale of any of its Shares, other than sales pursuant to a Registration Statement
contemplated in Section 7 of this Agreement or sales upon termination of the
transfer restrictions pursuant to Section 7.4 of this Agreement.
5.3 Due Execution, Delivery and Performance
(a) This Agreement has been duly executed and delivered by the Purchaser
and constitutes a valid and binding obligation of the Purchaser, enforceable
against the Purchaser in accordance with its terms.
13.
(b) The execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated in this Agreement and the
fulfillment of the terms of this Agreement have been duly authorized by all
necessary corporate action and will not conflict with or constitute a breach of,
or default under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Purchaser pursuant to, any
contract, indenture, mortgage, loan agreement, deed, trust, note, lease,
sublease, voting agreement, voting trust or other instrument or agreement to
which the Purchaser is a party or by which it or any of them may be bound, or to
which any of the property or assets of the Purchaser is subject, nor will such
action result in any violation of the provisions of the charter or bylaws of the
Purchaser or any applicable statute, law, rule, regulation, ordinance, decision,
directive or order.
6. Survival of Representations, Warranties and Agreements.
Notwithstanding any investigation made by any party to this Agreement, all
representations and warranties made by the Company and the Purchasers in this
Agreement and in the certificates for the Shares delivered pursuant to this
Agreement shall survive the execution of this Agreement, the delivery to the
Purchasers of the Shares being purchased and the payment therefor for a period
of one (1) year from the Closing Date, and all covenants and agreements made
herein shall survive indefinitely or until the end of any shorter period
indicated by their terms.
7. Form D Filing; Registration; Compliance with the Securities Act; Covenants
7.1 Form D Filing; Registration of Shares
7.1.1 Registration Statement; Expenses
The Company shall:
(a) file in a timely manner a Form D with the Commission relating to the
sale of the Shares under this Agreement, pursuant to Securities and Exchange
Commission Regulation D.
(b) as soon as practicable after the Closing Date, but in no event later
than the 20th day following the Closing Date, prepare and file with the
Commission a Registration Statement on Form S-3 (or, if the Company is
ineligible to use Form S-3, then on Form S-1) relating to the sale of the Shares
by the Purchasers from time to time on the Nasdaq National Market (or the
facilities of any national securities exchange on which the Company's Common
Stock is then traded) or in privately negotiated transactions (the "Registration
Statement");
(c) provide to the Purchasers any information required to permit the sale
of the Shares under rule 144A of the Securities Act;
(d) subject to receipt of necessary information from the Purchasers, use
its best efforts to cause the Commission to notify the Company of the
Commission's willingness to declare the Registration Statement effective on or
before 90 days after the Closing Date;
14.
(e) notify Purchasers promptly upon the Registration Statement, or any
post-effective amendment thereto, being declared effective by the Commission;
(f) prepare and file with the Commission such amendments and supplements
to the Registration Statement and the Prospectus (as defined in Section 7.3.1
below) and take such other action, if any, as may be necessary to keep the
Registration Statement effective (except as described in Section 5.2(b)) until
the earlier of (i) two years after the effective date of the Registration
Statement, (ii) the date on which all of the Shares then held by the Purchasers
may be resold by the Purchasers without registration and without regard to any
volume limitations by reason of Rule 144 under the Securities Act or any other
rule of similar effect or (iii) all of the Shares have been sold pursuant to the
Registration Statement or Rule 144 under the Securities Act or any other rule of
similar effect;
(g) promptly furnish to the Purchasers with respect to the Shares
registered under the Registration Statement such reasonable number of copies of
the Prospectus, including any supplements to or amendments of the Prospectus, in
order to facilitate the public sale or other disposition of all or any of the
Shares by the Purchasers;
(h) during the period when copies of the Prospectus are required to be
delivered under the Securities Act or the Exchange Act, file all documents
required to be filed with the Commission pursuant to Section 13, 14 or 15 of the
Exchange Act within the time periods required by the Exchange Act and the rules
and regulations promulgated thereunder;
(i) file documents required of the Company for customary Blue Sky
clearance in all states requiring Blue Sky clearance; provided, however, that
the Company shall not be required to qualify to do business or consent to
service of process in any jurisdiction in which it is not now so qualified or
has not so consented; and
(j) bear all expenses in connection with the procedures in paragraphs (a)
through (i) of this Section 7.1.1 and the registration of the Shares pursuant to
the Registration Statement.
7.1.2 Delay in Effectiveness of Registration Statement
In the event that the Registration Statement is not declared effective by the
date that is 120 days after the Closing Date, the Company shall pay to each
Purchaser liquidated damages in an amount equal to 0.25% of the total purchase
price of the Shares purchased by such Purchaser pursuant to this Agreement for
each full week after by the date that is 120 days after the Closing Date that
the Registration Statement is not declared effective.
7.2 Transfer of Shares After Registration
Each Purchaser agrees that it will not effect any disposition of the Shares or
its right to purchase the Shares that would constitute a sale within the meaning
of the Securities Act, except as contemplated in the Registration Statement
referred to in Section 7.1 or as otherwise permitted by law, and that it will
promptly notify the Company of any changes in the information set forth in the
Registration Statement regarding the Purchaser or its plan of distribution.
15.
7.3 Indemnification
For the purpose of this Section 7.3, the term "Registration Statement" shall
include any preliminary or final prospectus, exhibit, supplement or amendment
included in or relating to the Registration Statement referred to in Section
7.1.
7.3.1 Indemnification by the Company
The Company agrees to indemnify and hold harmless each of the Purchasers and
each person, if any, who controls any Purchaser within the meaning of the
Securities Act, against any losses, claims, damages, liabilities or expenses,
joint or several, to which such Purchasers or such controlling person may become
subject, under the Securities Act, the Exchange Act, or any other federal or
state statutory law or regulation, or at common law or otherwise (including in
settlement of any litigation, if such settlement is effected with the written
consent of the Company, which consent shall not be unreasonably withheld),
insofar as such losses, claims, damages, liabilities or expenses (or actions in
respect thereof as contemplated below) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in the
Registration Statement, including the Prospectus, financial statements and
schedules, and all other documents filed as a part thereof, as amended at the
time of effectiveness of the Registration Statement, including any information
deemed to be a part thereof as of the time of effectiveness pursuant to
paragraph (b) of Rule 430A, or pursuant to Rule 434, of the Rules and
Regulations, or the Prospectus, in the form first filed with the Commission
pursuant to Rule 424(b) of the Regulations, or filed as part of the Registration
Statement at the time of effectiveness if no Rule 424(b) filing is required (the
"Prospectus"), or any amendment or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state in any of them a material
fact required to be stated therein or necessary to make the statements in any of
them, in light of the circumstances under which they were made, not misleading,
or arise out of or are based in whole or in part on any inaccuracy in the
representations and warranties of the Company contained in this Agreement, or
any failure of the Company to perform its obligations under this Agreement or
under law, and will reimburse each Purchaser and each such controlling person
for any legal and other expenses as such expenses are reasonably incurred by
such Purchaser or such controlling person in connection with investigating,
defending, settling, compromising or paying any such loss, claim, damage,
liability, expense or action; provided, however, that the Company will not be
liable in any such case to the extent that any such loss, claim, damage,
liability or expense arises out of or is based upon (i) an untrue statement or
alleged untrue statement or omission or alleged omission made in the
Registration Statement, the Prospectus or any amendment or supplement of the
Registration Statement or Prospectus in reliance upon and in conformity with
written information furnished to the Company by or on behalf of the Purchaser
expressly for use in the Registration Statement or the Prospectus, or (ii) the
failure of such Purchaser to comply with the covenants and agreements contained
in Sections 5.2 or 7.2 of this Agreement respecting resale of the Shares, or
(iii) the inaccuracy of any representations made by such Purchaser in this
Agreement or (iv) any untrue statement or omission of a material fact required
to make such statement not misleading in any Prospectus that is corrected in any
subsequent Prospectus that was delivered to the Purchaser before the pertinent
sale or sales by the Purchaser.
16.
7.3.2 Indemnification by the Purchaser
Each Purchaser will severally and not jointly indemnify and hold harmless the
Company, each of its directors, each of its officers who signed the Registration
Statement and each person, if any, who controls the Company within the meaning
of the Securities Act, against any losses, claims, damages, liabilities or
expenses to which the Company, each of its directors, each of its officers who
signed the Registration Statement or controlling person may become subject,
under the Securities Act, the Exchange Act, or any other federal or state
statutory law or regulation, or at common law or otherwise (including in
settlement of any litigation, if such settlement is effected with the written
consent of such Purchaser, which consent shall not be unreasonably withheld)
insofar as such losses, claims, damages, liabilities or expenses (or actions in
respect thereof as contemplated below) arise out of or are based upon (i) any
failure on the part of such Purchaser to comply with the covenants and
agreements contained in Sections 5.2 or 7.2 of this Agreement respecting the
sale of the Shares or (ii) the inaccuracy of any representation made by such
Purchaser in this Agreement or (iii) any untrue or alleged untrue statement of
any material fact contained in the Registration Statement, the Prospectus, or
any amendment or supplement to the Registration Statement or Prospectus, or
arise out of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made in the Registration Statement, the Prospectus, or any
amendment or supplement thereto, in reliance upon and in conformity with written
information furnished to the Company by or on behalf of such Purchaser expressly
for use therein; provided, however, that the Purchaser shall not be liable for
any such untrue or alleged untrue statement or omission or alleged omission of
which the Purchaser has delivered to the Company in writing a correction before
the occurrence of the transaction from which such loss was incurred, and the
Purchaser will reimburse the Company, each of its directors, each of its
officers who signed the Registration Statement or controlling person for any
legal and other expense reasonably incurred by the Company, each of its
directors, each of its officers who signed the Registration Statement or
controlling person in connection with investigating, defending, settling,
compromising or paying any such loss, claim, damage, liability, expense or
action.
7.3.3 Indemnification Procedure
(a) Promptly after receipt by an indemnified party under this Section 7.3
of notice of the threat or commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against an indemnifying party
under this Section 7.3, notify the indemnifying party in writing of the claim;
but the omission so to notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party for contribution or
otherwise under the indemnity agreement contained in this Section 7.3 to the
extent it is not prejudiced as a result of such failure.
(b) In case any such action is brought against any indemnified party and
such indemnified party seeks or intends to seek indemnity from an indemnifying
party, the indemnifying party will be entitled to participate in, and, to the
extent that it may wish, jointly
17.
with all other indemnifying parties similarly notified, to assume the defense
thereof with counsel reasonably satisfactory to such indemnified party;
provided, however, if the defendants in any such action include both the
indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be a conflict between the positions of
the indemnifying party and the indemnified party in conducting the defense of
any such action or that there may be legal defenses available to it or other
indemnified parties that are different from or additional to those available to
the indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assume such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to such indemnified
party of its election so to assume the defense of such action and approval by
the indemnified party of counsel, the indemnifying party will not be liable to
such indemnified party under this Section 7.3 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof unless:
(i) the indemnified party shall have employed such counsel in
connection with the assumption of legal defenses in accordance with the proviso
to the preceding sentence (it being understood, however, that the indemnifying
party shall not be liable for the expenses of more than one separate counsel,
approved by such indemnifying party representing all of the indemnified parties
who are parties to such action) or
(ii) the indemnifying party shall not have employed counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party within a reasonable time after notice of commencement of action, in each
of which cases the reasonable fees and expenses of counsel shall be at the
expense of the indemnifying party. Notwithstanding the provisions of this
Section 7.3, the Purchaser shall not be liable for any indemnification
obligation under this Agreement in excess of the amount of gross proceeds
received by the Purchaser from the sale of the Shares.
7.3.4 Contribution
If the indemnification provided for in this Section 7.3 is required by its terms
but is for any reason held to be unavailable to or otherwise insufficient to
hold harmless an indemnified party under this Section 7.3 in respect to any
losses, claims, damages, liabilities or expenses referred to in this Agreement,
then each applicable indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of any losses, claims, damages,
liabilities or expenses referred to in this Agreement
(a) in such proportion as is appropriate to reflect the relative benefits
received by the Company and the Purchaser from the placement of Common Stock or
(b) if the allocation provided by clause (a) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (a) above but the relative fault of the
Company and the Purchaser in connection with the statements or omissions or
inaccuracies in the representations and warranties in this Agreement that
resulted in such losses, claims, damages, liabilities or expenses, as well as
any other relevant equitable considerations.
18.
The respective relative benefits received by the Company on the one hand and
each Purchaser on the other shall be deemed to be in the same proportion as the
amount paid by such Purchaser to the Company pursuant to this Agreement for the
Shares purchased by such Purchaser that were sold pursuant to the Registration
Statement bears to the difference (the "Difference") between the amount such
Purchaser paid for the Shares that were sold pursuant to the Registration
Statement and the amount received by such Purchaser from such sale. The relative
fault of the Company and each Purchaser shall be determined by reference to,
among other things, whether the untrue or alleged statement of a material fact
or the omission or alleged omission to state a material fact or the inaccurate
or the alleged inaccurate representation or warranty relates to information
supplied by the Company or by such Purchaser and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The amount paid or payable by a party as a result of the
losses, claims, damages, liabilities and expenses referred to above shall be
deemed to include, subject to the limitations set forth in Section 7.3.3, any
legal or other fees or expenses reasonably incurred by such party in connection
with investigating or defending any action or claim. The provisions set forth in
Section 7.3.3 with respect to the notice of the threat or commencement of any
threat or action shall apply if a claim for contribution is to be made under
this Section 7.3.4; provided, however, that no additional notice shall be
required with respect to any threat or action for which notice has been given
under Section 7.3 for purposes of indemnification. The Company and each
Purchaser agree that it would not be just and equitable if contribution pursuant
to this Section 7.3 were determined solely by pro rata allocation (even if the
Purchaser were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations referred
to in this paragraph. Notwithstanding the provisions of this Section 7.3, no
Purchaser shall be required to contribute any amount in excess of the amount by
which the Difference exceeds the amount of any damages that such Purchaser has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Purchasers' obligations to contribute pursuant
to this Section 7.3 are several and not joint.
7.4 Termination of Conditions and Obligations
The restrictions imposed by Section 5 or this Section 7 upon the transferability
of the Shares shall cease and terminate as to any particular number of the
Shares upon the passage of two years from the Closing Date or at such time as an
opinion of counsel satisfactory in form and substance to the Company shall have
been rendered to the effect that such conditions are not necessary in order to
comply with the Securities Act.
7.5 Information Available
So long as the Registration Statement is effective covering the resale of Shares
owned by any Purchaser, the Company will furnish to such Purchaser:
(a) as soon as practicable after available one copy of
19.
(i) if not included in substance in the Annual Report to
Shareholders, its Annual Report on Form 10-K;
(ii) if not included in substance in its Quarterly Reports to
Shareholders, its quarterly reports on Form 10-Q; and
(iii) a full copy of the particular Registration Statement covering
the Shares (the foregoing, in each case, excluding exhibits);
(b) upon the request of the Purchaser, a reasonable number of copies of
the Prospectus to supply to any other party requiring the Prospectus.
7.6 Rule 144 Information
For two years after the date of this Agreement, the Company shall file all
reports required to be filed by it under the Securities Act, the Rules and
Regulations and the Exchange Act and shall take such further action to the
extent required to enable the Purchasers to sell the Shares pursuant to Rule 144
under the Securities Act (as such rule may be amended from time to time).
7.7 Stock Option Matters and Other Matters
The Company shall, within thirty (30) days of the Closing Date, adopt such
amendments to the Company's By-laws (the "By-law Amendments") to provide that,
unless approved by the holders of a majority of the shares present and entitled
to vote at a duly convened meeting of shareholders, the company shall not (i)
grant any stock options with an exercise price that is less than 100% of the
fair market value of the underlying stock on the date of grant; (ii) reduce the
exercise price of any stock option granted under any existing or future stock
option plan; or (iii) sell or issue any security convertible, exercisable or
exchangeable into shares of Common Stock, having a conversion, exercise or
exchange price per share which is subject to downward adjustment based on the
market price of the Common Stock at the time of conversion, exercise or exchange
of such security into Common Stock (other than pursuant to customary anti-
dilution provisions). The By-law Amendments may not be further amended or
repealed without the affirmative vote of the holders of a majority of the shares
present and entitled to vote at a duly convened meeting of shareholders. Upon
the adoption of the By-law Amendments, the Company shall promptly furnish a copy
of such amendments to the Purchasers. The Company agrees that, prior to the
adoption of the By-law Amendments by all necessary corporate action of the
Company as described above, the Company shall not conduct any of the actions
specified in (i), (ii) or (iii) above of this Section 7.7.
8. Legal Fees and Other Transaction Expenses
At the Closing, the Company agrees to pay a flat fee of $5,000 to the State
of Wisconsin Investment Board for their legal and other transaction expenses
(whether internal or external) arising in connection with the transactions
contemplated by this Agreement.
20.
9. Broker's Fee
Each of the parties to this Agreement hereby represents that, on the basis of
any actions and agreements by it, there are no other brokers or finders entitled
to compensation in connection with the sale of the Shares to the Purchasers. The
Company shall indemnify and hold harmless the Purchasers from and against all
fees, commissions or other payments owing by the Company to any person or firm
acting on behalf of the Company hereunder
10. Notices
All notices, requests, consents and other communications under this Agreement
shall be in writing, shall be mailed by first-class registered or certified
airmail, confirmed facsimile or nationally recognized overnight express courier
postage prepaid, and shall be delivered as addressed as follows:
(a) if to the Company, to:
V.I. Technologies, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: President
Facsimile: 617-923-2276
or to such other person at such other place as the Company shall designate to
the Purchaser in writing; and
(b) if to a Purchaser, at its address as set forth on the signature page
to this Agreement, or at such other address or addresses as may have been
furnished to the Company in writing.
Such notice shall be deemed effectively given upon confirmation of receipt by
facsimile, one business day after deposit with such overnight courier or three
days after deposit of such registered or certified airmail with the U.S. Postal
Service, as applicable.
11. Modification; Amendment
This Agreement may not be modified or amended except pursuant to an instrument
in writing signed by the Company and the Purchasers of a majority of the Shares
sold pursuant to this Agreement.
12. Termination
This Agreement may be terminated as to any Purchaser, at the option of such
Purchaser, if the Closing has not occurred on or before thirty (30) days from
the date of this Agreement.
21.
13. Headings
The headings of the various sections of this Agreement have been inserted for
convenience of reference only and shall not be deemed to be part of this
Agreement.
14. Severability
If any provision contained in this Agreement should be held to be invalid,
illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained in this Agreement shall not
in any way be affected or impaired thereby.
15. Governing Law
This Agreement shall be governed by and construed in accordance with the laws of
the Commonwealth of Massachusetts and the federal law of the United States of
America.
16. No Conflicts of Interest.
The Company represents, warrants, and covenants that, to the best of its
knowledge, no trustee or employee of the State of Wisconsin Investment Board
identified on the attached list, either directly or indirectly (a) currently
holds, except as may be specifically set forth below, a personal interest in the
Company or any of its affiliates (together, the "Entity") or the Entity's
property or securities, or (b) will, in connection with the investment made
pursuant to this Agreement, receive (i) a personal interest in the Entity or the
Entity's property or securities or (ii) anything of substantial economic value
for his or her private benefit from the Entity or anyone acting on its behalf.
As to ownership of an interest in the Entity's publicly traded securities,
"knowledge" hereunder is based on an examination of record holders of the
Entity's securities and actual knowledge of the undersigned.
17. Counterparts
This Agreement may be executed in two or more counterparts, each of which shall
constitute an original, but all of which, when taken together, shall constitute
but one instrument, and shall become effective when one or more counterparts
have been signed by each party to this Agreement and delivered to the other
parties.
[Signature pages follow]
22.
In Witness Whereof, the parties to this Agreement have caused this Agreement to
be executed by their duly authorized representatives as of the day and year
first above written.
V.I. Technologies, Inc.
By /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Its: Chief Financial Officer
State of Wisconsin Investment Board
By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Investment Director
Address:
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
Share Purchase Agreement
Signature Page
Schedule A
PURCHASERS
State of Wisconsin Investment Board.
Exhibit A
[Reserved]
EXHIBIT B
SCHEDULE OF EXCEPTIONS
4.5 No Material Change
The Company has recently entered into a non-binding Letter of Intent
with a minority shareholder, Ampersand Ventures, to sell its Plasma Operations
business located in Melville, N.Y. for a total transaction value of $35 to $40
million. All of the Company's manufacture of PLAS+SD for the American Red Cross
and Plasma Fractions for Bayer are conducted at the Plasma Operations. Proceeds
of the transaction will be used for retirement of debt, general corporate
purposes and to fund the Company's research and development activities.
Completion of the transaction is subject to due diligence, negotiations of final
terms and approval of the respective parties' Boards of Directors.
4.7 No Defaults
As of December 30, 2000, the Company did not meet certain covenants
under its term loan agreement with Chase Manhattan Bank. These covenants
addressed a quarterly loss limitation and a debt coverage ratio. Chase Manhattan
Bank formally waived non-compliance in a letter dated February 14, 2001.
4.9 No Actions
The Company uses ethanol as a concentration agent in its plasma
fractionation process and in column regeneration for the PLAS+SD process.
Ethanol has been purchased by the Company on the assumption that it is entitled
to tax-exempt status based on operations and usage in manufacturing. An
application to formalize tax-exempt status has been pending before the U.S.
Bureau of Alcohol, Tobacco and Firearms (the "Bureau") since 1998. The Bureau
has recently initiated its review and has requested the Company to pay ethanol
excise tax until a determination is made. On advice of counsel, the Company
commenced paying the excise tax in October 2000 while the on-going review is
finalized.
In the event of a determination that the Company is not eligible for
tax exemption, the Bureau has advised the Company that the Company would be
entitled to a drawback arrangement of the fees paid for alcohol used in plasma
fractionation. The effect of this would be recovery by the Company of the
majority of excise taxes paid and a minimal effect on manufacturing costs.
Further, management believes that in the event the Company is not granted tax
exempt status, retroactive costs, if any, would not be material to the Company's
financial condition or results of operations. Until the Company is granted
either a tax exemption or allowed to file drawback claims, the imposition of the
excise tax will result in cash outflows of approximately $0.5 million per month.
As of December 30, 2000, the Company has paid $1.6 million to the
Bureau, which is included in other receivables. The Company has filed claims
with the Bureau to obtain a drawback refund. The Company is actively working
with the Bureau to resolve this matter in the near future.
4.10 Intellectual Property
During the fourth quarter of 2000, the Company applied to the
regulatory authorities in the United Kingdom for approval to market its solvent
detergent plasma in that jurisdiction. That application is pending. In February
2001, the Company received notices from Octapharma Corporation and from the New
York Blood Center (the "NYBC") that marketing solvent detergent plasma in the
United Kingdom would violate territorial rights claimed by each party. These
rights are the subject of a range of lawsuits between Octapharma and NYBC. VITEX
has responded to each that it has not marketed or imported into the United
Kingdom solvent detergent treated plasma and that it is not the Company's
intention to take any action which would infringe on the intellectual property
rights of Octapharma or NYBC. VITEX has engaged outside counsel to ensure that
the act of applying for marketing approval does not constitute infringement in
the United Kingdom.
In the fourth quarter of 2000, Cerus Corporation received a U.S.
patent relating to methods of inactivating certain pathogens in mammalian blood
or blood products. On January 24, 2001, Cerus sent a letter to VITEX notifying
VITEX of the patent issuance. There has been no further contact between the
companies. VITEX's internal patent counsel and two law firms retained by VITEX
have reviewed the patent history as well as the patent itself and concluded that
the INACTINE(TM) process neither constitutes literal infringement nor
infringement under the doctrine of equivalents.
4.13 Properties
The Company leases its premises at 000 Xxxxxxxx Xxx in Watertown,
Massachusetts, which house its corporate headquarters and its research and
development facilities. The lease on this property runs until 2009.
The Company's manufacturing facility on Xxxxxx Road, Melville, New
York is owned by the Suffolk County Industrial Development Agency ("SCIDA"),
which has granted the Company an option to purchase the facility for $1.00 upon
termination of a Facility Lease Agreement between SCIDA and the Company. The
facility is subject to a mortgage with Chase Manhattan Bank under a term loan
agreement, and further subject to a security interest of Bayer Corporation to
secure the Company's obligations under Processing Agreement with Bayer. The
Company has additionally granted a security interest in certain manufacturing
equipment to collateralize a master lease agreement.
Under the Credit Agreement between the Company and the Chase Manhattan Bank
(the "bank"), dated December 22, 1997, the Company granted the bank a mortgage
upon, and security interest in, substantially all of the property owned by the
Company, including the real property, building and fixtures, equipment,
inventory, accounts receivable, cash and certain intangible assets, subject to a
Mortgage and a Security Agreement with Bayer Corporation and the security
interests of a third party under a Master Equipment Lease Agreement. The Company
and Bayer executed a Security Agreement upon the Company's refinancing of its
long-term debt on December 22, 1997. The Security Agreement secures certain
obligations of the Company to Bayer, including Bayer's march-in rights relating
to the Processing Agreement, a priority security interest in all of the
equipment and other personal property owned by the Company involved in the
Company's plasma fractionation operation, and a subordinated security interest
in the Company's real property, building, fixtures and equipment.
EXHIBIT C
TRUSTEES OF THE STATE OF WISCONSIN INVESTMENT BOARD
Xxx X. Xxxxxx
Xxxx Xxxxxxxx III Xxxxxx X. Xxxxxx
Xxxx X. Xxxxxxxxxxx Xxxxxx X. Xxxxxxxxxx
Xxxxxx Xxxxx Xxxxxxxx Xxxxx X. Xxxxxx
Xxxxx X. Xxxxx Xxxxxxx X. Xxxxx
RELEVANT EMPLOYEES OF THE STATE OF WISCONSIN INVESTMENT BOARD
All Transactions
----------------
Xxxxxxxx Xxxxxx Executive Director
Xxxxxx Xxxxxx Chief Investment Officer - Equities
Xxxxx Xxxxxxx Chief Legal Counsel
Xxxxxx Xxx Assistant Legal Counsel
Xxx Xxxxxx Chief Investment Officer - Fixed Income
Xxxxxxx Xxxxxxx Assistant Legal Counsel
For Real Estate Transactions
----------------------------
Xxxxxx Xxxxxxxxx Investment Director
Xxxxx Xxxxxxxxx Assistant Investment Director
Xxxx Xxxxxxxxxxx Investment Officer
Xxxxx Xxxxxxxxxx Investment Officer
For Private Placement Loans
---------------------------
Xxx Xxxxxx Investment Director
Xxx Xxxxxxxxx Portfolio Manager
Xxxxxx Xxxxxxx Portfolio Manager
For Private Placement Funds & Equity Investments
------------------------------------------------
Xxx Xxxxxx Investment Director
Xxx Xxxxxxxxxxx Portfolio Manager
Xxxxxx Xxxxx Assistant Portfolio Manager
Xxx Xxxxx Investment Officer
For Non-traditional Investments
-------------------------------
Xxxx Xxxxxx Investment Director
Xxx Xxxxx Securities Analyst
For Small Cap Portfolio Direct Placements
-----------------------------------------
Xxxx Xxxxxx Investment Director
Xxxx Xxxxxxx Securities Analyst
Xxxx Xxxxxxx Securities Analyst
Xxxxxx Xxxxxx Securities Analyst
Xxx Xxxx Securities Analyst
Appendix I
V.I. TECHNOLOGIES, INC.
STOCK CERTIFICATE QUESTIONNAIRE
Pursuant to Section 3 of the Agreement, please provide us with the following
information:
1. The exact name that your Shares are to be registered in (this is the name
that will appear on your stock certificate(s)). You may use a nominee name
if appropriate:
__________________________________
2. The relationship between the Purchaser of the Shares and the Registered
Holder listed in response to item 1 above: _____________________________
3. The mailing address of the Registered Holder listed in response to item 1
above:
___________________________________
___________________________________
___________________________________
___________________________________
4. The Social Security Number or Tax Identification Number of the Registered
Holder listed in response to item 1 above:
___________________________________
Appendix II
V.I. TECHNOLOGIES, INC.
REGISTRATION STATEMENT QUESTIONNAIRE
In connection with the preparation of the Registration Statement, please provide
us with the following information:
5. Pursuant to the "Selling Shareholder" section of the Registration
Statement, please state your or your organization's name exactly as it
should appear in the Registration Statement:
_______________________________________________________
6. Please provide the number of shares that you or your organization will own
immediately after Closing, including those Shares purchased by you or your
organization pursuant to this Purchase Agreement and those shares purchased
by you or your organization through other transactions: ___________________
__________________________
7. Have you or your organization had any position, office or other material
relationship within the past three years with the Company or its
affiliates?
_____ Yes _____ No
If yes, please indicate the nature of any such relationships below:
_________________________________________________________
_________________________________________________________
_________________________________________________________
_________________________________________________________
Appendix III
PURCHASER'S CERTIFICATE OF SUBSEQUENT SALE
The undersigned, an officer of, or other person duly authorized by
______________________________________________________________________________
[fill in official name of individual or institution]
hereby certifies that he/she/it is the Purchaser of the shares evidenced by the
attached certificate, and as such, sold such shares on ________________, 200__
in accordance with Registration Statement number 333-________________, and
complied with the requirement of delivering a current prospectus in connection
with such sale.
Print or Type:
Name of Purchaser (Individual or Institution):
________________________________________________________________________________
Name of Individual representing Purchaser (if an Institution)
________________________________________________________________________________
Title of Individual representing Purchaser (if an Institution):
________________________________________________________________________________
Signature:
Individual Purchaser or Individual representing Purchaser:
________________________________________________________________________________
2.
