["****" indicates material omitted and filed separately with the Securities and
Exchange Commission pursuant to a request for confidential treatment]
EXHIBIT 10.16
V.I. TECHNOLOGIES, INC.
PALL CORPORATION
------------------------------
STOCK PURCHASE AGREEMENT
------------------------------
FEBRUARY 19, 1998
Table of Contents
-----------------
Page
Section No.
------- ----
Glossary of Defined Terms.......................................... i
1. Sale and Purchase................................................ 1
2. The Closings..................................................... 3
3. Representations and Warranties of Vitex.......................... 5
(a) Organization; Good Standing.............................. 5
(b) Subsidiaries............................................. 5
(c) Capitalization........................................... 6
(d) No Defaults or Violations................................ 6
(e) Key Agreements and Instruments........................... 6
(f) Governmental Filings and Authorizations.................. 7
(g) Authorization and Enforceability of Agreements........... 7
(h) Authorization and Reservation of Shares.................. 8
(i) Consents and Approvals................................... 8
(j) Effect of Agreements on Business and Commitments of Vitex 8
(k) Litigation............................................... 8
(l) Reports and Financial Statements......................... 9
(m) Liabilities.............................................. 9
(n) Employees................................................ 9
(o) Employee Benefit Plans................................... 10
(p) Patents, Licenses, etc................................... 11
(q) Taxes.................................................... 11
(r) Properties............................................... 12
(s) Condition of Properties.................................. 12
(t) Insurance................................................ 12
(u) No Material Transaction or Material Adverse Effect....... 12
(v) Transactions with Related Parties........................ 12
(w) Registration Rights...................................... 13
(x) Private Offering......................................... 13
(y) Brokerage................................................ 13
(z) Illegal or Unauthorized Payments; Political Contributions 13
(aa) Material Facts........................................... 13
4. Covenants of Vitex............................................... 14
(a) Board Representation..................................... 14
(b) Financial and Business Information....................... 14
(i) Interim Statements............................... 14
(ii) Annual Statements................................ 14
(iii) Audit Reports.................................... 15
(iv) Other Reports.................................... 15
i
(v) Progress Reports................................. 15
(vi) Requested Information............................ 15
(c) Inspection............................................... 15
(d) Conduct of Business and Maintenance of Existence......... 15
(e) Insurance................................................ 16
(f) Keeping of Books......................................... 16
(g) Lost, etc. Certificates Evidencing Shares; Exchange ..... 16
(h) Commencement and Termination of Covenants................ 16
(i) Form D Filing............................................ 16
(j) Registration of Shares................................... 16
(k) Reservation of Shares.................................... 16
5. Representations, Warranties and Covenants of Pall;
Additional Covenants of Vitex.................................. 17
(a) General................................................... 17
(b) Disclosure of Non-Public Information...................... 18
(c) Securities Act Matters.................................... 18
(d) No Intention of Board to Pay Dividends.................... 18
(e) ▇▇▇▇-▇▇▇▇▇ Act Compliance................................. 18
(f) Consents and Approvals.................................... 18
(g) Black-Out Period.......................................... 19
(h) Standstill Agreement...................................... 19
6. Conditions to Closings........................................... 22
(a) Conditions to Pall's Obligations.......................... 22
(i) Representations and Warranties................... 22
(ii) Compliance with Agreements....................... 22
(iii) No Legislation or Injunction..................... 22
(iv) No Material Adverse Effect....................... 22
(v) Consents and Approvals........................... 22
(vi) Officers' Certificate............................ 23
(vii) Opinion of Counsel............................... 23
(viii) Secretary's Certificate.......................... 23
(ix) Approval of Proceedings.......................... 23
(x) Other Agreements................................. 23
(xi) Recent Financial Statements...................... 24
(xii) Antitrust Approvals.............................. 24
(xiii) Director Designee................................ 24
(b) Conditions to Vitex's Obligations......................... 24
(i) No Legislation or Injunction..................... 24
(ii) Consents and Approvals........................... 24
(iii) Officer's Certificate............................ 24
(iv) Antitrust Approvals.............................. 25
(v) Secretary's Certificate.......................... 25
(vi) Approval of Proceedings.......................... 25
-ii-
(vii) Other Agreements................................. 25
7. Expenses......................................................... 25
8. Notices.......................................................... 26
9. Parties; Assignment.............................................. 27
10. Survival of Provisions........................................... 27
11. Amendment and Modification....................................... 27
12. Further Assurances............................................... 27
13. Waiver of Breach................................................. 27
14. Remedies......................................................... 27
15. Entire Agreement................................................. 28
16. Severability..................................................... 28
17. Counterparts..................................................... 28
18. Governing Law; Consent to Jurisdiction........................... 28
Exhibit A Form of First Stockholders' Agreement
Exhibit B Form of Second Stockholders' Agreement
Exhibit C Form of Registration Rights Agreement
Exhibit D Form of Opinion of ▇▇▇▇▇▇▇, Del Deo, Dolan, Griffinger &
▇▇▇▇▇▇▇▇▇, P.C.
-iii
Stock Purchase Agreement
Glossary of Defined Terms
--------------------------------------------------------------------------------
Section or Location
Term in Agreement
---- --------------------
----------------------------------------------- -------------------------------
Affiliate...................................... 5(h)(v)
Agreements..................................... 3(f)
Average Market Price........................... 1(b)
Benefit Arrangement............................ 3(o)
Blood Center Amendment......................... Preamble
Board.......................................... 4(a)
Commission..................................... 3(1)
Common Stock................................... Preamble
Closing........................................ 2(g)
Closing Date................................... 2(g)
Closings....................................... 2(g)
Commitments.................................... 3(j)
Disclosure Letter.............................. 3 (first paragraph)
Exchange Act................................... 5(h)(i)
FDA............................................ 2(e)
Fifth Closing.................................. 2(e)
First Stockholders' Agreement.................. Preamble
Fourth Closing................................. 2(d)
GAAP........................................... 3(1)
▇▇▇▇-▇▇▇▇▇ Act................................. 3(f)
Initial Closing................................ 2(a)
Intellectual Property.......................... 3(p)
IND............................................ 2(b)
IPO............................................ 1(b)
--------------------------------------------------------------------------------
-i-
--------------------------------------------------------------------------------
Section or Location
Term in Agreement
---- --------------------
---------------------------------------------- -------------------------------
IPO Closing.................................... 2(f)
IPO Closing Date............................... 1(b)
Joint Development Agreement.................... Preamble
Key Agreements and Instruments................. 3(d)
Letter of Intent............................... Preamble
Market Prices.................................. 1(b)
Material Adverse Effect........................ 3(a)
Nasdaq......................................... 1(b)
Non-Public Information......................... 5(b)
Other Securities............................... 5(h)(i)
Person......................................... 3(i)
Prohibited Securities.......................... 5(h)(ii)
Qualified Director............................. 4(a)
Registration Rights Agreement.................. Preamble
Second Closing................................. 2(b)
Second Stockholders' Agreement................. Preamble
Securities Act................................. 3(1)
Shares......................................... 1(g)
Subsidiaries................................... 3(b)
System......................................... 2(b)
Third Closing.................................. 2(c)
13D Group...................................... 5(h)(v)
Underwriters' IPO Closing...................... 2(f)
Voting Power................................... 5(h)(i)
--------------------------------------------------------------------------------
_________________________
STOCK PURCHASE AGREEMENT
_________________________
-ii-
Page
Section No.
------- ----
This Stock Purchase Agreement is dated as of February 19, 1998, by and
between V.I. Technologies, Inc., a Delaware corporation ("Vitex"), and Pall
Corporation, a New York corporation ("Pall").
WHEREAS, in a letter dated and signed by Pall on November 3, 1997, and
signed by Vitex on November 5, 1997 (the "Letter of Intent"), Pall confirmed its
intention to acquire an equity position in Vitex and enter into an operating
agreement with Vitex to develop and market systems which utilize Vitex's
proprietary compounds to inactivate viruses and other pathogens in red blood
cells and platelets; and
WHEREAS, prior to or concurrently with the execution and delivery of this
Agreement, (i) Pall and Vitex are executing and delivering a Joint Development,
Marketing and Distribution Agreement (the "Joint Development Agreement"), (ii)
Pall and certain stockholders of Vitex are executing and delivering a
Stockholders' Agreement in the form of Exhibit A hereto (the "First
Stockholders' Agreement") and a Second Stockholders' Agreement in the form of
Exhibit B hereto (the "Second Stockholders' Agreement"), (iii) Pall, Vitex and
certain stockholders of Vitex are executing and delivering a Registration Rights
Agreement in the form of Exhibit C hereto (the "Registration Rights Agreement"),
and (iv) The New York Blood Center, Inc. and Vitex have executed an Amendment to
Exclusive License Agreement (#5) for Virally Inactivated Cellular Products (the
"Blood Center Amendment"); and
WHEREAS, Pall wishes to purchase, and Vitex wishes to sell, shares of the
common stock, par value $0.01 per share, of Vitex (the "Common Stock") as
proposed in the Letter of Intent and as provided in this Agreement;
NOW, THEREFORE, to effect such purchase and sale and in consideration of
the mutual covenants, representations, warranties and agreements hereinafter set
forth, and intending to be legally bound by this Agreement, Vitex and Pall agree
as follows:
1. Sale and Purchase. Subject to the conditions set forth herein, Vitex
-----------------
agrees to issue and sell to Pall, and Pall agrees to purchase from Vitex, shares
of Common Stock as follows:
(a) At the Initial Closing (as defined in paragraph 2(a) of this
Agreement), Vitex will issue to Pall 1,333,333 shares of Common Stock for
an aggregate purchase price of $4 million;
-iii-
["****" indicates material omitted and filed separately with the Securities and
Exchange Commission pursuant to a request for confidential treatment]
Page
Section No.
------- ----
(b) At the Second Closing (as defined in paragraph 2(b) of this
Agreement), Vitex will issue to Pall ******** shares of Common Stock for
an aggregate purchase price of ********; provided that if the Second
Closing occurs on or after the closing date (the "IPO Closing Date") of the
initial underwritten public offering by Vitex of its Common Stock (the
"IPO"), the number of shares of Common Stock to be issued under this
paragraph 1(b) shall be obtained by dividing ******** by the "Average
Market Price" on the date of the Second Closing. For purposes of this
Agreement, (i) the Average Market Price on any date shall be the average of
the "Market Prices" for the twenty trading days immediately preceding such
date, (ii) a trading day shall be a day on which the New York Stock
Exchange is open for business, and (iii) Market Price on any date shall be
the following: (A) if the Common Stock is listed or admitted for trading on
one or more United States national securities exchanges, the closing price
on such date for the Common Stock on the principal exchange in the United
States on which the Common Stock is listed; (B) if the Common Stock is not
listed or admitted for trading on any United States national securities
exchange, the closing price on such date for the Common Stock on the Nasdaq
National or Nasdaq Small-Cap Market ("Nasdaq"); (C) if the Common Stock is
not listed or admitted for trading on a United States national securities
exchange or on Nasdaq, the average of the reported bid and asked prices on
such date in the over-the-counter market as furnished by the Nasdaq
Bulletin Board or (if such prices were not furnished by the Nasdaq Bulletin
Board) as furnished by the National Quotation Bureau, Inc. or (if such firm
is not then engaged in the business of reporting such prices) as furnished
by any member of the National Association of Securities Dealers, Inc.
selected jointly and in good faith by Pall and Vitex; or (D) if the Common
Stock is not publicly traded, the fair market value thereof determined
jointly and in good faith by Pall and Vitex; provided that if Pall and
Vitex are unable to reach agreement as to fair market value within a
reasonable period of time, the fair market value shall be determined in
good faith by an independent investment banking firm selected jointly and
in good faith by Pall and Vitex or, if Pall and Vitex are unable to reach
agreement as to that selection, by an independent investment banking firm
selected by the American Arbitration Association in accordance with its
rules; and provided further, that if any but not all of the trading days
used to compute Average Market Price are on or after the IPO Closing Date,
the Market Price on any date preceding the IPO Closing Date shall be the
purchase price per share for which the Common Stock is sold in the IPO,
less underwriters' discounts and commissions.
(c) At the Third Closing (as defined in paragraph 2(c) of this
Agreement), Vitex will issue to Pall ******** shares of Common Stock for
an aggregate purchase price of ******** *******, provided that if the Third
Closing occurs on or after the IPO Closing Date, the number of shares of
Common Stock to be issued under this paragraph 1(c) shall be obtained by
dividing ******** by the Average Market Price;
-iv-
["****" indicates material omitted and filed separately with the Securities and
Exchange Commission pursuant to a request for confidential treatment]
Page
Section No.
------- ----
(d) At the Fourth Closing (as defined in paragraph 2(d) of this
Agreement), Vitex will issue to Pall ******** shares of Common Stock for
an aggregate purchase price of ********, provided that if the Fourth
Closing Date occurs on or after the IPO Closing Date, the number of shares
of Common Stock to be issued under this paragraph 1(d) shall be obtained by
dividing ******** by the Average Market Price;
(e) At the Fifth Closing (as defined in paragraph 2(e) of this
Agreement), Vitex will issue to Pall ******** shares of Common Stock for
an aggregate purchase price of ********, provided that if the Fifth
Closing Date occurs on or after the IPO Closing Date, the number of shares
of Common Stock to be issued under this paragraph 1(e) shall be obtained by
dividing ******** by the Average Market Price;
(f) At the IPO Closing (as defined in paragraph 2(f) of this
Agreement), Pall will pay to Vitex $5 million, in consideration for which
Vitex will issue to Pall a number of shares of Common Stock obtained by
dividing 5,000,000 by the purchase price per share for which the Common
Stock is sold in the IPO, less underwriters' discounts and commissions.
(g) All shares of Common Stock issued by Vitex to Pall pursuant to
this Agreement are hereinafter referred to collectively as the "Shares."
2. The Closings.
------------
(a) The closing of the purchase and sale of the Shares pursuant to
paragraph 1(a) of this Agreement (the "Initial Closing") shall occur on
February 19, 1998, or such other date as may be agreed upon by Pall and
Vitex. At the Initial Closing, Pall will pay Vitex $4 million less any
payments previously made by Pall to Vitex pursuant to Section 4A of the
Letter of Intent, in immediately available funds to such account as Vitex
shall designate, against delivery to Pall of a certificate for 1,333,333
Shares. Upon making such payment, Pall shall have no further obligation to
make payments under Section 4A of the Letter of Intent.
(b) The closing of the purchase and sale of the Shares pursuant to
paragraph 1(b) of this Agreement (the "Second Closing") shall occur on such
date as may be agreed upon by Pall and Vitex; provided that without the
written consent of both Pall and Vitex, but subject to Section 6 of this
Agreement, the Second Closing shall occur on the tenth business day after
the date on which the ****** *** ******* ** ******* * ** *** *****
*********** ********** ** ***** **** ** ***** ** * ******** *************
*** ******* ** ** *** ********* ***** *** ******** *** *** ***** * ***** **
******* *************** *** **** ***********
-v-
["****" indicates material omitted and filed separately with the Securities and
Exchange Commission pursuant to a request for confidential treatment]
Page
Section No.
------- ----
*** *** ****** **** ****** . At the Second Closing, Pall will pay Vitex
******** in immediately available funds to such account as Vitex shall
designate, against delivery to Pall of a certificate for the number of
Shares determined under paragraph 1(b) of this Agreement.
(c) The closing of the purchase and sale of the Shares pursuant to
paragraph 1(c) of this Agreement (the "Third Closing") shall occur on such
date as may be agreed upon by Pall and Vitex; provided that without the
written consent of both Pall and Vitex, but subject to Section 6 of this
Agreement, the Third Closing shall occur on the tenth business day after
the date on which the ****** ** ***** **** ** ***** ** * ********
************* *** ******* ** ** *** ********* ***** *** ******** *** ***
***** * ***** ** *** ***. At the Third Closing, Pall will pay Vitex
******** in immediately available funds to such account as Vitex shall
designate, against delivery to Pall of a certificate for the number of
shares determined under paragraph 1(c) of this Agreement.
(d) The closing of the purchase and sale of the Shares pursuant to
paragraph 1(d) of this Agreement (the "Fourth Closing") shall occur on such
date as may be agreed upon by Pall and Vitex; provided that without the
written consent of both Pall and Vitex, but subject to Section 6 of this
Agreement, the Fourth Closing shall occur on the tenth business day after
the date on which the ****** ** ***** **** ** ***** ** * ********
************* *** ******* ** ** *** ********* ***** *** ******** *** ***
***** * ***** ** *** ***. At the Fourth Closing, Pall will pay Vitex
******** in immediately available funds to such account as Vitex shall
designate, against delivery to Pall of a certificate for the number of
shares determined under paragraph 1(d) of this Agreement.
(e) The closing of the purchase and sale of the Shares pursuant to
paragraph 1(e) of this Agreement (the "Fifth Closing") shall occur on such
date as may be agreed upon by Pall and Vitex; provided that without the
written consent of both Pall and Vitex, but subject to Section 6 of this
Agreement, the Fifth Closing shall occur on the tenth business day after
the date on which ***** ***** ******* **** *** ****** ****** **** *** ****
************** **** ****** ***** ******** ** *** ********* ********
*********** *** *** ****** ******** ** ** *** *********. At the Fifth
Closing, Pall will pay Vitex ******** in immediately available funds to
such account as Vitex shall designate, against delivery to Pall of a
certificate for the number of Shares determined under paragraph 1(e) of
this Agreement.
(f) The closing of the purchase and sale of the Shares pursuant to
paragraph 1(f) of this Agreement (the "IPO Closing") shall occur
concurrently with the closing of the IPO (the "Underwriters' IPO Closing"),
subject to Section 6 of this Agreement. At the IPO Closing, Pall will pay
Vitex $5 million in immediately available funds to such account as
-vi-
Page
Section No.
------- ----
Vitex shall designate, against delivery to Pall of a certificate for the
number of Shares determined under paragraph 1(f) of this Agreement.
(g) The Initial Closing, the Second Closing, the Third Closing, the
Fourth Closing, the Fifth Closing and the IPO Closing are hereinafter
referred to collectively as the "Closings" and individually as a "Closing."
Each Closing other than the IPO Closing shall occur at the offices of
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, or such other
location as may be agreed upon by Vitex and Pall. The IPO Closing shall
occur at the same location as the Underwriters' IPO Closing, or such other
location as may be agreed upon by Vitex and Pall. The date on which any
Closing occurs is referred to herein as a "Closing Date."
(h) Adjustments. The number of Shares issuable to Pall at any Closing
-----------
pursuant to paragraphs (b) through (f) of Section 1 shall be appropriately
adjusted to reflect any split, subdivision, reverse split or consolidation
of the outstanding Common Stock, or the issuance of any stock dividend, at
any time after the date of this Agreement and prior to such Closing.
3. Representations and Warranties of Vitex. Except as set forth in a
---------------------------------------
Disclosure Letter being delivered by Vitex to Pall simultaneously with the
execution and delivery of this Agreement, and at each Closing as provided in
subsection 6(a)(i) of this Agreement (a "Disclosure Letter"), Vitex represents
and warrants to Pall as follows:
(a) Organization; Good Standing. Vitex is a corporation duly
---------------------------
organized, validly existing and in good standing under the laws of
Delaware, with full power and authority, corporate and other, to own or
lease and operate its properties and to conduct its business as currently
conducted, and is duly qualified to do business as a foreign corporation
and is in good standing in the State of New York and in all other
jurisdictions where such qualification is required, except where failure so
to qualify would not have a material adverse effect on the condition
(financial or otherwise), results of operations, business, assets, or
prospects of Vitex and its Subsidiaries (as defined below) taken as a whole
(a "Material Adverse Effect"). Except as provided in paragraph 3(f), Vitex
has made all necessary filings under all applicable corporate, securities
and any other laws to which it is subject, except where the failure to file
would not have a Material Adverse Effect.
(b) Subsidiaries. As of the date of this Agreement, Vitex has no
------------
majority-owned, consolidated subsidiaries (each, a "Subsidiary" and,
collectively, the "Subsidiaries"). At each Closing, the Subsidiaries of
Vitex, if any, will be as set forth in Schedule 3(b) of the Disclosure
-------------
Letter for such Closing. References below to a Subsidiary or Subsidiaries
shall
-vii-
Page
Section No.
------- ----
not apply on the date of this Agreement and thereafter shall apply only on
Closing Dates when Vitex shall have one or more Subsidiaries.
Each Subsidiary is a corporation duly organized, validly existing and
in good standing under the laws of its jurisdiction of incorporation, with
full power and authority, corporate and other, to own or lease and operate
its properties and to conduct its business as currently conducted, and is
duly qualified to do business as a foreign corporation and is in good
standing in all jurisdictions where such qualification is required, except
where failure so to qualify would not have a Material Adverse Effect. Each
Subsidiary has made all necessary filings required under all applicable
corporate, securities and any other laws to which it is subject, except
where failure to file would not have a Material Adverse Effect. Vitex has
no subsidiaries other than the Subsidiaries.
(c) Capitalization.
--------------
(i) The authorized capital of Vitex consists of 40,000,000
shares of Common Stock and 500 shares of preferred stock, and there
are issued and outstanding 22,394,612 shares of Common Stock, all of
which have been duly authorized and validly issued and are fully-paid
and non-assessable. Schedule 3(c)(i) of the Disclosure Letter sets
----------------
forth the names of all current record holders of the Common Stock and
the number of shares of Common Stock held of record by each of them.
Vitex will be required to update Schedule 3(c)(i) only in the
----------------
Disclosure Letters for Closings prior to the IPO Closing.
(ii) Except as set forth in Schedule 3(c)(ii) to the Disclosure
-----------------
Letter, there are no outstanding securities convertible into Common
Stock or any options, warrants, rights or other derivative securities
to purchase any Common Stock or securities convertible into Common
Stock.
(d) No Defaults or Violations. Neither Vitex nor a Subsidiary is in
-------------------------
violation of, or in default under, any term or provision of (i) its
certificate of incorporation or by-laws, (ii) any indenture, mortgage, deed
of trust, credit agreement, note or other evidence of indebtedness,
contract, commitment, undertaking, arrangement, or other agreement or
instrument to which it is a party or by which it or any of its properties
or business is bound or subject, and which is material to Vitex and the
Subsidiaries taken as a whole (collectively, the "Key Agreements and
Instruments"), which violation or default would have a Material Adverse
Effect, or (iii) any existing applicable law, rule, regulation, ordinance,
code, judgment, order or decree of any governmental agency or court,
domestic or foreign, having
-viii-
Page
Section No.
------- ----
jurisdiction over Vitex or any Subsidiary or any of their respective
properties or businesses, which violation or default would have a Material
Adverse Effect. Vitex and each Subsidiary owns, possesses or has obtained
all material governmental and other licenses, permits, certifications,
registrations, approvals or consents and other authorizations necessary to
own or lease, as the case may be, and operate its properties and to conduct
its business as currently conducted, and all such licenses, permits,
certifications, registrations, approvals, consents and other authorizations
are in full effect and in good standing. There are no proceedings pending
or, to the best of Vitex's knowledge, threatened seeking to cancel,
terminate or limit any such licenses, permits, certifications,
registrations, approvals or consents or authorizations, which cancellation,
termination or limitation would constitute a Material Adverse Effect, nor
is there any basis therefor.
(e) Key Agreements and Instruments. Schedule 3(e) of the Disclosure
------------------------------ -------------
Letter sets forth a true and complete list of each of the Key Agreements
and Instruments then in effect. A true and complete copy of each of such
Key Agreements and Instruments (including all exhibits and schedules
thereto) has previously been furnished to Pall, except those Key Agreements
and Instruments (identified by an asterisk in Schedule 3(e)) which Pall has
--------------
elected not to request or which Vitex is prohibited from furnishing to Pall
by confidentiality agreements, provided that Vitex shall have furnished to
Pall summaries of the material terms of such Agreements, to the extent not
prohibited by confidentiality agreements. Each of the Key Agreements and
Instruments is valid, binding and enforceable against Vitex or a Subsidiary
and, to Vitex's best knowledge, the other parties thereto, in accordance
with its terms, and is in full force and effect.
(f) Governmental Filings and Authorizations. Each filing,
---------------------------------------
authorization, approval, consent, order, registration, license or permit of
any court or governmental or regulatory agency or body required in
connection with the execution and delivery by Vitex of this Agreement, the
Joint Development Agreement, the Registration Rights Agreement and the
Blood Center Amendment (collectively, the "Agreements"), and the
consummation of the transactions therein contemplated, has been made or
obtained, except such as may be required under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇
Antitrust Improvements Act of 1976, as amended (the "▇▇▇▇-▇▇▇▇▇ Act").
(g) Authorization and Enforceability of Agreements. Vitex has full
----------------------------------------------
power and authority, corporate and other, to execute and deliver the
Agreements, to consummate the transactions contemplated thereby and to
perform its obligations thereunder. The execution and delivery of the
Agreements by Vitex, and the performance by Vitex of its obligations
thereunder, have been duly authorized by all necessary corporate action on
the part of Vitex.
-ix-
Page
Section No.
------- ----
The Agreements have been duly executed and delivered by Vitex and
constitute the valid and binding obligations of Vitex, enforceable against
Vitex in accordance with their terms, except insofar as enforcement may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium
and other laws affecting the rights of creditors generally, and by the
discretion of courts in granting equitable remedies, and except to the
extent that compliance with the ▇▇▇▇-▇▇▇▇▇ Act may be required. The
execution and delivery of the Agreements by Vitex, the performance by Vitex
of the transactions therein contemplated, and the compliance by Vitex with
the terms of the Agreements do not, and will not, with or without the
giving of notice or the lapse of time, or both, (A) result in any violation
of the certificate of incorporation or by-laws of Vitex or any of its
Subsidiaries, (B) result in a breach of or conflict with any of the terms
or provisions of, or constitute a default under, or result in the
modification or termination of, or result in the creation or imposition of
any lien, security interest, charge or encumbrance upon any of the
properties or assets of Vitex or any of its Subsidiaries pursuant to, any
of the Key Agreements and Instruments, (C) violate any existing applicable
law, rule, regulation, judgment, order or decree of any governmental agency
or court, domestic or foreign, having jurisdiction over Vitex or a
Subsidiary or its or their properties or business, or (D) result in or have
any Material Adverse Effect.
(h) Authorization and Reservation of Shares. The issuance and sale of
---------------------------------------
the Shares have been duly authorized by Vitex on or prior to the date of
this Agreement, and, when issued and paid for as provided in this
Agreement, each Share will be validly issued and fully paid and
nonassessable, and Pall will not be subject to any personal liability
solely by reason of being the holder of the Shares. Vitex has duly
reserved not less than 7,000,000 authorized but unissued shares of Common
Stock (subject to adjustment as provided in paragraph 2(h) of this
Agreement) for issuance to Pall under this Agreement at the Closings
subsequent to the Initial Closing, and will at all times maintain a
sufficient reserve of authorized but unissued shares of Common Stock for
issuance to Pall under this Agreement.
(i) Consents and Approvals. The execution and delivery by Vitex of
----------------------
the Agreements, the issuance of any of the Shares, and the performance by
Vitex of its other obligations under the Agreements do not require Vitex or
any of its Subsidiaries to obtain any consent, approval, clearance or
action of, or make any filing submission or registration with, or give any
notice to, any Person or judicial authority. As used in this Agreement,
"Person" shall mean an individual, partnership, joint stock company,
corporation, limited liability company, trust or unincorporated
organization, and a government, agency, regulatory authority or political
subdivision thereof.
(j) Effect of Agreements on Business and Commitments of Vitex.
---------------------------------------------------------
Neither the
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purchase of the Shares by Pall nor the consummation of the transactions
contemplated by the Agreements will result in (i) the loss by Vitex of the
benefits of any material business relationship, including with any customer
or supplier, (ii) the acceleration of the vesting of any outstanding
option, warrant, call, commitment, agreement, conversion right, preemptive
right or other right to subscribe for, purchase or otherwise acquire any of
the shares of the capital stock or any debt securities of Vitex or any of
its Subsidiaries (collectively "Commitments", and each individually a
"Commitment"), (iii) any obligation of Vitex or its Subsidiaries to grant,
extend or enter into any Commitment, or (iv) any right in favor of any
Person to terminate or cancel any of the Key Agreements and Instruments.
(k) Litigation. There are no claims, actions, suits, proceedings,
----------
arbitrations, investigations or inquiries by or before any governmental
agency, court or tribunal, domestic or foreign, or before any private
arbitration tribunal, pending or, to the best of Vitex's knowledge,
threatened against Vitex or any Subsidiary or involving the properties or
business of Vitex or any Subsidiary which, if determined adversely, would,
individually or in the aggregate, result in a Material Adverse Effect, or
which relate in any way to the validity of the capital stock of Vitex or
the validity of the Agreements, or of any action taken or to be taken by
Vitex pursuant to or in connection with the Agreements. Neither Vitex nor
any Subsidiary is subject to any order, writ, judgment, injunction, decree,
determination or award of any court or of any governmental agency or
instrumentality (whether federal, state, local or foreign) which could
reasonably be expected to have a Material Adverse Effect.
(l) Reports and Financial Statements. KPMG Peat Marwick LLP are the
--------------------------------
independent public accountants to the Company and are "independent public
accountants" within the meaning of the Securities Act of 1933, as amended
(the "Securities Act"), and the regulations of the Securities and Exchange
Commission (the "Commission") promulgated thereunder. Vitex has furnished
Pall with true and complete copies of Vitex's audited financial statements
at December 31, 1996, and December 31, 1995, and for the fiscal years then
ended, and unaudited financial statements at December 31, 1997, and for
the year then ended. Such financial statements (i) have been prepared in
accordance with United States generally accepted accounting principles
("GAAP") applied on a consistent basis (except as may be indicated therein
or in the notes thereto), (ii) present fairly, in all material respects,
the financial position of Vitex as at the dates thereof and the results of
its operations and cash flows for the periods then ended subject, in the
case of the unaudited financial statements, to normal year-end audit
adjustments and any other adjustments described therein, and (iii) are, in
all material respects, in accordance with the books of account and records
of Vitex except as indicated therein. Schedule 3(l) of the Disclosure
-------------
Letter for each Closing prior to the IPO Closing will update this paragraph
3(l) with respect to all annual financial statements
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and the most recent interim financial statement delivered to Pall by Vitex
pursuant to paragraph 4(b) of this Agreement since the date of the
immediately preceding Disclosure Letter.
(m) Liabilities. Except as and to the extent reflected or reserved
-----------
against in the financial statements of Vitex referred to in paragraph 3(l)
above, Vitex as at December 31, 1997, had no material liabilities, debts,
obligations or claims asserted against it, whether accrued, absolute,
contingent or otherwise, and whether due or to become due, and including,
but not limited to, liabilities on account of taxes, unfunded past service
liabilities under any pension, profit sharing or similar plan, other
governmental charges or lawsuits brought subsequent to such date. Schedule
--------
3(m) of the Disclosure Letter for each Closing prior to the IPO Closing
----
will update this paragraph 3(m) as of the end of the fiscal quarter of
Vitex immediately preceding the Closing Date of such Closing.
(n) Employees.
---------
(i) Vitex and its Subsidiaries are in full compliance with all
laws regarding employment, wages, hours, equal opportunity, collective
bargaining and payment of social security and other taxes except to
the extent that noncompliance would not have a Material Adverse
Effect. Except as would not have a Material Adverse Effect, no
complaint of any unfair labor practice or discriminatory employment
practice against Vitex or any Subsidiary has been filed or, to the
best of Vitex's knowledge, threatened to be filed with or by the
National Labor Relations Board, the Equal Employment Opportunity
Commission or any other administrative agency, federal or state, that
regulates labor or employment practices, nor is any grievance filed
or, to the best of Vitex's knowledge, threatened to be filed, against
Vitex or any Subsidiary by any employee pursuant to any collective
bargaining or other employment agreement to which Vitex or any
Subsidiary is a party or is bound. Vitex and its Subsidiaries are in
compliance with all applicable federal, state, provincial and local
laws and regulations regarding occupational safety and health
standards except to the extent that noncompliance will not have a
Material Adverse Effect, and have received no unresolved complaints
from any federal, state or local agency or regulatory body alleging
violations of any such laws or regulations.
(ii) Schedule 3(n)(ii) of the Disclosure Letter lists all
-----------------
employment contracts between Vitex or a Subsidiary and its officers
and other employees currently in effect. Except as may be provided in
such Schedule, the employment of all Persons employed by Vitex or its
Subsidiaries is, subject to the provisions of
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applicable law, terminable at will without any penalty or severance
obligation of any kind on the part of the employer. All sums due for
employee compensation and benefits and all vacation time owing to any
employees of Vitex or any of its Subsidiaries have been duly and
adequately accrued on the accounting records of Vitex and the
Subsidiaries.
(iii) To the best knowledge of Vitex, after due inquiry, none of
Vitex's executive officers is obligated under any contract (including
licenses, covenants or commitments of any nature) or other agreement,
or subject to any judgment, decree or order of any court or
administrative agency, that would interfere with the use of such
executive officer's fulltime best efforts to promote the interests of
Vitex or that would conflict with Vitex's business as currently
conducted or proposed to be conducted.
(iv) Vitex is not aware that any officer or key employee, or
that any group of key employees, intends to terminate their employment
with Vitex, nor does Vitex intend at present to terminate the
employment of any of the foregoing.
(o) Employee Benefit Plans. Vitex and the Subsidiaries have no
----------------------
employee benefit plans (as defined in Section 3(3) of the Employee
Retirement Income Security Act of 1974) covering former and current
employees of Vitex or a Subsidiary, or under which Vitex or a Subsidiary
has any obligation or liability. Schedule 3(o) of the Disclosure Letter
-------------
lists all material compensation plans then in effect, including, without
limitation, those relating to bonuses, commissions, profit-sharing,
savings, stock options, insurance and deferred compensation or other
similar fringe or employee benefits arrangements covering former or current
employees of Vitex or a Subsidiary or under which Vitex or a Subsidiary has
any obligation or liability (each, a "Benefit Arrangement"). A true and
complete copy of each Benefit Arrangement has previously been furnished to
Pall. The Benefit Arrangements are and have been administered in
substantial compliance with their terms and with the requirements of
applicable law.
(p) Patents, Licenses, etc.
----------------------
(i) Vitex and each Subsidiary owns, free and clear of all
encumbrances, restrictions, liens, security interests and charges, and
has good and marketable title to, or holds adequate licenses or
otherwise possesses all such rights as are necessary to use all
patents (and applications therefor), patent disclosures, trademarks,
service marks, trade names, copyrights (and applications therefor),
integrated circuit
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topographies, inventions, discoveries, processes, know-how,
scientific, technical, engineering and marketing data, formulae and
techniques used or proposed to be used, in or necessary for the
conduct of its business as now conducted or as proposed to be
conducted (collectively, "Intellectual Property").
(ii) Neither Vitex nor a Subsidiary has received notice or
otherwise has reason to know of any conflict or alleged conflict with
the rights of others pertaining to the Intellectual Property described
in this paragraph 3(p) where the effect of such conflict could have a
Material Adverse Effect. To Vitex's best knowledge, Vitex's business,
as presently conducted and as proposed to be conducted, does not
infringe upon or violate any patent rights or trade secrets of others
except where Vitex has a valid license or sublicense. To Vitex's best
knowledge, Vitex and its Subsidiaries have the right to use all trade
secrets, processes, customer lists and other rights incident to their
respective businesses as now conducted or as proposed to be conducted.
(iii) To the best knowledge of Vitex, after due inquiry, no
employee of Vitex or a Subsidiary has violated any employment
agreement or proprietary information agreement which he or she had
with a previous employer or any patent policy of such employer, or is
a party to or threatened by any litigation concerning any patents,
trademarks, trade secrets, service names, trade names, copyrights,
licenses and the like.
(q) Taxes. Vitex and each Subsidiary has filed all tax returns
-----
required to be filed with the appropriate taxing authorities, including all
state, municipal and other local authorities (whether relating to income,
sales, goods and services, franchise, withholding, real or personal
property or other types of taxes) or has duly obtained extensions of time
for the filing thereof, and has paid in full all taxes which have become
due pursuant to such returns or claimed to be due by any such taxing
authority or otherwise due and owing, except for taxes which are being
contested in good faith by way of appropriate proceedings and in respect of
which appropriate reserves have been taken on the financial statements of
Vitex and except where the failure to file such tax returns or to pay such
taxes would not have a Material Adverse Effect. The provisions for taxes
in the balance sheets described in paragraph 3(l) are sufficient for the
payment in all material respects of all accrued and unpaid federal, state,
county and local taxes of Vitex and its Subsidiaries whether or not
assessed or disputed as of the respective dates of such balance sheets.
(r) Properties. Vitex and each Subsidiary have good and marketable
----------
title to all
-xiv-
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properties owned by them, free and clear of all security interests,
charges, mortgages, liens, encumbrances and defects, except such as do not
materially affect the value or transferability of such property and do not
interfere with the use of such property made or proposed to be made by
Vitex or such Subsidiary. The leases, licenses or other contracts or
instruments under which Vitex and each Subsidiary leases, holds or is
entitled to use any property, real or personal, are valid, subsisting and
enforceable, with only such exceptions as are not material and do not
interfere with the use of such property made, or proposed to be made, by
Vitex or such Subsidiary, and all rentals, royalties or other payments
accruing thereunder which became due prior to the date of this Agreement
have been duly paid, and neither Vitex nor any Subsidiary is in material
default thereunder and, to the best of Vitex's knowledge, no event has
occurred which, with the passage of time or the giving of notice, or both,
would constitute a material default thereunder. Neither Vitex nor a
Subsidiary has received notice of any violation of any applicable law,
ordinance, regulation, order or requirement relating to its owned or leased
properties, except where such violation would not have a Material Adverse
Effect.
(s) Condition of Properties. All facilities, machinery, equipment,
-----------------------
fixtures, vehicles and other properties owned, leased or used by Vitex and
its Subsidiaries are reasonably fit and usable for the purposes for which
they are being used, are adequate and sufficient for Vitex's or a
Subsidiary's business and conform in all material respects with all
applicable ordinances, regulations and laws, except where the failure to
conform would not have a Material Adverse Effect.
(t) Insurance. As described in Schedule 3(t) of the Disclosure
--------- -------------
Letter, Vitex and the Subsidiaries have insured their properties against
loss or damage by fire or other casualty and maintain such other insurance,
including but not limited to, such liability insurance as is usually
maintained by companies similar in size and credit standing to Vitex and
engaged in the same or similar businesses and owning similar properties.
(u) No Material Transaction or Material Adverse Effect. Since the end
--------------------------------------------------
of Vitex's last completed fiscal year, (i) Vitex has not entered into any
material transactions other than in the ordinary course of business, except
for those provided for in the Agreements; and (ii) there has not been any
event that has had or may have a Material Adverse Effect.
(v) Transactions with Related Parties. Since the beginning of Vitex's
---------------------------------
last completed fiscal year, neither Vitex nor a Subsidiary has been a party
to any transaction, has had any relationship, or has lent money in any
manner that would require disclosure under Item 404 of Regulation S-K of
the Commission. To the best knowledge of Vitex, there exist
-xv-
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no agreements among stockholders of Vitex to act in concert with respect to
their voting or holding of Vitex securities, except as provided in the
Stockholders' Agreement dated as of April 29, 1997, among Vitex and the
stockholders of Vitex listed on Schedule I thereto, which Agreement will
terminate as of the Initial Closing and be replaced by the First
Stockholders' Agreement.
(w) Registration Rights. Vitex is not under any contractual
-------------------
obligation to register any of its securities for resale under the
Securities Act, other than (i) contractual obligations to current or former
employees and directors relating to their stock compensation from Vitex,
and (ii) as provided in a Registration Rights Agreement dated April 29,
1997, among Vitex and the stockholders of Vitex listed on Schedule I
thereto, which Agreement will terminate as of the Initial Closing and be
replaced by the Registration Rights Agreement.
(x) Private Offering. Based upon the representations, warranties and
----------------
covenants of Pall set forth in Section 5 hereof, the offer, issuance and
sale of the Shares are and will be exempt from the registration and
prospectus delivery requirements of the Securities Act, and have been or
will be registered or qualified (or are or will be exempt from registration
and qualification) under the registration, permit or qualification
requirements of all applicable state securities laws.
(y) Brokerage. There are no claims for brokerage commissions or
---------
finder's fees or similar compensation in connection with the transactions
contemplated by the Agreements based on any arrangement made by or on
behalf of Vitex, and Vitex agrees to indemnify and hold Pall harmless
against any costs or damages incurred by Pall as a result of any such
claim.
(z) Illegal or Unauthorized Payments; Political Contributions.
---------------------------------------------------------
Neither Vitex nor any Subsidiary, nor any of the current officers and
directors of Vitex or a Subsidiary on its behalf, has, directly or
indirectly, made or authorized any payment, contribution or gift of money,
property, or services, (a) as a kickback or bribe to any Person or (b) to
any political organization, or the holder of or any aspirant to any
elective or appointive public office except for personal political
contributions not involving the use of funds of Vitex or a Subsidiary.
(aa) Material Facts. This Agreement (including the Disclosure Letter
--------------
being delivered herewith), the Joint Development Agreement, and the other
documents, certificates or written statements furnished or to be furnished
to Pall by or on behalf of Vitex in connection with its purchase of the
Shares, taken as a whole, do not contain any untrue
-xvi-
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statement of a material fact or omit to state a material fact necessary to
make the statements contained therein, in light of the circumstances in
which they were made, not misleading. Schedule 3(a)(a) of the Disclosure
----------------
Letter for each Closing will update the immediately preceding sentence but
need not include the Joint Development Agreement after the Initial Closing.
Except for factors affecting the economy or the pharmaceutical or health
care industry generally, there is no fact which is known to Vitex, which
has not been disclosed by Vitex to Pall in a Disclosure Letter or
otherwise, and which will have a Material Adverse Effect.
4. Covenants of Vitex. Vitex covenants and agrees as follows:
------------------
(a) Board Representation.
--------------------
(i) For so long as the Joint Development Agreement is in effect,
Vitex will use its best efforts, consistent with the fiduciary duty of
its Board of Directors (the "Board"), to cause to be nominated,
elected and maintained in office as a director on the Board one person
who is nominated by Pall from time to time and who is a Qualified
Director as defined in the Second Stockholders' Agreement. Pall's
initial nominee is ▇▇▇▇▇▇ ▇▇▇▇▇▇▇-Surry, and Vitex acknowledges that,
as of the date of this Agreement, to the best of its knowledge, he is
a Qualified Director. Vitex shall pay all reasonable out-of-pocket
expenses incurred by the directors nominated by Pall in connection
with attending Board meetings or transacting other Vitex business.
(ii) Pall shall nominate a director, or request the removal of
its nominee from the Board, by delivering a notice to the Secretary of
the Company. As promptly as practicable, but in any event within 10
days after delivery of such notice, the Company shall take or cause to
be taken such corporate actions as may be reasonably required to cause
the election or removal requested in such notice. Such corporate
actions may include calling a meeting, or soliciting a written
consent, of the Board.
(b) Financial and Business Information. Until the IPO Closing, Vitex
----------------------------------
will deliver to Pall:
(i) Interim Statements - as soon as available, and in any event
------------------
within 45 days after the close of each of the first three fiscal
quarters of each fiscal year of Vitex, interim consolidated financial
statements of Vitex and any Subsidiaries prepared in accordance with
Article 10 of Regulation S-X of the Commission.
-xvii-
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(ii) Annual Statements - as soon as available after the end of
-----------------
each fiscal year of Vitex, and in any event within 90 days thereafter,
a consolidated balance sheet of Vitex and any Subsidiaries at the end
of such year; and consolidated statements of income, stockholders'
equity and cash flows of Vitex and any Subsidiaries for such year,
setting forth in each case in comparative form the figures for the
previous fiscal year, all in reasonable detail and accompanied by an
auditors' report thereon of independent certified public accountants
of recognized national standing selected by Vitex.
(iii) Audit Reports - promptly upon receipt thereof, one copy of
-------------
each other financial report and internal control letter submitted to
Vitex by independent accountants in connection with any annual,
interim or special audit made by them of the books of Vitex.
(iv) Other Reports - promptly upon their becoming available, one
-------------
copy of: each financial statement, report, registration statement,
prospectus, notice, definitive proxy statement or other written
communication sent by Vitex to its stockholders generally or filed
with or submitted to the Commission or any securities exchange by
Vitex or a Subsidiary; any press release issued by Vitex or a
Subsidiary; and any communications of any nature whatsoever prepared
by the Commission, the NASD or any national securities exchange which
is addressed to Vitex or a Subsidiary.
(v) Progress Reports - prior to each regularly scheduled
----------------
meeting of the Board, a narrative report of Vitex's activities since
the date of the last such report, including a description of business
development, operating results and marketing efforts.
(vi) Requested Information - with reasonable promptness, such
---------------------
other data and information as from time to time Pall may reasonably
request.
(c) Inspection. In connection with any Closing, Vitex will permit
----------
employees and other representatives of Pall: to visit and inspect any of
the properties of Vitex and any Subsidiaries; to examine all its and their
books of account, records, reports and other papers that Vitex is not
contractually required to keep confidential or secret, or that are not
subject to attorney-client privilege; to make copies and extracts
therefrom; and to discuss its affairs, finances and accounts with Vitex's
officers, directors, key employees and independent public accountants or
any of them (and by this provision Vitex authorizes such accountants to
discuss with Pall's employees and other representatives the finances and
affairs of Vitex and
-xviii-
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any Subsidiaries), all at such reasonable times and as often as may be
reasonably requested.
(d) Conduct of Business and Maintenance of Existence. Vitex will (i)
------------------------------------------------
prior to the IPO Closing, continue to engage in business of the same
general type as now conducted by it, (ii) preserve, renew and keep in full
force and effect its corporate existence, and (iii) take all reasonable
action to maintain all rights, privileges and franchises necessary or
desirable for the normal conduct of its business.
(e) Insurance. Vitex will maintain insurance with responsible and
---------
reputable insurance companies or associations in such amounts and covering
such risks as is usually carried by companies similar in size and credit
standing to Vitex and engaged in the same or similar businesses and owning
similar properties, provided that such insurance is and remains available
to Vitex at commercially reasonable rates.
(f) Keeping of Books. Vitex will keep proper books of record and
----------------
account, in which full and correct entries shall be made of all financial
transactions and the assets and business of Vitex and its subsidiaries in
accordance with GAAP.
(g) Lost, etc. Certificates Evidencing Shares; Exchange. Upon receipt
---------------------------------------------------
by Vitex of evidence reasonably satisfactory to it of the loss, theft,
destruction or mutilation of any certificate evidencing any Shares owned by
Pall, and (in the case of loss, theft or destruction) of an indemnity
satisfactory to it, and upon reimbursement to Vitex of all reasonable
expenses incidental thereto, and upon surrender and cancellation of such
certificate, if mutilated, Vitex will make and deliver in lieu of such
certificate a new certificate of like tenor and for the number of
securities evidenced by such certificate which remain outstanding. Prior
to the IPO Closing, Pall's agreement of indemnity shall constitute an
indemnity satisfactory to Vitex for purposes of this paragraph 4(g); after
the IPO Closing, Vitex shall have the right to require Pall to furnish such
form of indemnity as Vitex or its transfer agent requires of Vitex
stockholders generally. Upon surrender of any certificate representing any
securities of Vitex for exchange at the office of Vitex, Vitex at its
expense will cause to be issued in exchange therefor new certificates in
such denomination or denominations as may be requested for the same
aggregate number of securities represented by the certificate so
surrendered and registered in the name of Pall.
(h) Commencement and Termination of Covenants. Except as otherwise
-----------------------------------------
specifically provided in any paragraph of this Section 4, the obligations
of Vitex and the rights of Pall set forth in this Section 4 shall begin on
the date of this Agreement and shall terminate one year after the last of
the Closings.
-xix-
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(i) Form D Filing. If the sale of the Shares to Pall qualifies for an
-------------
exemption from registration provided by Regulation D under the Securities
Act, Vitex will timely file with the Commission a Form D under the
Securities Act in connection with the sale of the Shares to Pall.
(j) Registration of Shares. Vitex will register any or all of the
----------------------
Shares under the Securities Act for the public resale thereof in accordance
with, and will be bound by the provisions of, the Registration Rights
Agreement.
(k) Reservation of Shares. Vitex will at all times maintain a reserve
---------------------
of authorized but unissued shares of Common Stock and/or treasury shares
sufficient for the fulfillment by Vitex of its obligations to issue Shares
to Pall pursuant to this Agreement.
5. Representations, Warranties and Covenants of Pall; Additional
-------------------------------------------------------------
Covenants of Vitex.
------------------
(a) General. Pall hereby represents and warrants that:
-------
(i) Pall is a corporation duly organized, validly existing and in
good standing under the laws of New York, with full power and
authority, corporate and other, to execute and deliver the Agreements,
to consummate the transactions contemplated thereby and to perform its
obligations thereunder. The execution, delivery and performance by
Pall of the Agreements to which it is a party, and the performance by
Pall of its obligations thereunder, have been duly authorized by all
necessary corporate action on the part of Pall. The Agreements to
which Pall is a party have been duly executed and delivered by Pall
and constitute the valid and binding obligations of Pall, enforceable
against Pall in accordance with their terms, except insofar as
enforcement may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium and other laws affecting the rights of
creditors generally and by the discretion of courts in granting
equitable remedies, and except and to the extent that compliance with
the ▇▇▇▇-▇▇▇▇▇ Act may be required;
(ii) Pall is an "accredited investor" within the meaning of Rule
501(a) of Regulation D under the Securities Act, and is purchasing the
Shares at the relevant Closing for its own account, and not with a
view to any distribution thereof in a transaction that would violate
the Securities Act or the securities laws of any state of the United
States or any other applicable jurisdiction, but without prejudice to
Pall's right at all times to sell or otherwise dispose of all or any
part of the Shares under a registration statement under the Securities
Act or under an exemption from said
-xx-
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registration available under the Securities Act;
(iii) Pall's principal executive offices are located in the
State of New York;
(iv) Pall understands that an investment in Vitex bears a high
degree of risk and represents that it has such knowledge and
experience in financial and business matters that it is capable of
evaluating the merits and risks of purchasing the Shares, and is able
to bear the economic risks of its investment for an indefinite period
of time; and
(v) Pall has had access to such financial and other
information, and has been afforded the opportunity to ask such
questions of representatives of Vitex and receive answers thereto, as
it deems necessary in connection with its purchase of the Shares.
(b) Disclosure of Non-Public Information. As to so much of the
------------------------------------
information and other material furnished under or in connection with the
Agreements (whether furnished before, on or after the date hereof,
including without limitation information furnished pursuant to paragraphs
4(b) and (c) hereof) as constitutes or contains non-public business,
financial or other information of Vitex or a Subsidiary ("Non-Public
Information"), Pall covenants that it will use due care to prevent its
officers, directors, employees, counsel, accountants and other
representatives from (i) disclosing any Non-Public Information to Persons
other than Palls's directors, authorized officers and other employees,
counsel, accountants and other authorized representatives, or (ii) using
Non-Public Information in any manner that would constitute a violation of
U.S. federal or state securities laws; provided that Pall may disclose or
deliver any information or other material disclosed to or received by it
should Pall be advised by its counsel (a copy of such advice to be
delivered to Vitex) that such disclosure or delivery is required by law,
regulation or judicial or administrative order or otherwise in connection
with a resale of Shares by Pall in a transaction which is not covered by a
registration statement under the Securities Act, so long as the recipient
of such information enters into a confidentiality agreement with Vitex in
form and substance reasonably satisfactory to Vitex. For purposes of this
paragraph 5(b), "due care" means at least the same level of care that Pall
would use to protect the confidentiality of its own sensitive or
proprietary information, and this obligation shall survive termination of
this Agreement.
(c) Securities Act Matters. Pall acknowledges that the Shares are
----------------------
being offered to it in a transaction not involving any public offering
within the meaning of the Securities
-xxi-
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Act and that the offer and sale of the Shares to Pall have not been
registered and will not be registered under the Securities Act or under the
securities laws of any state of the United States. Pall agrees that it will
not sell or otherwise transfer the Shares except pursuant to an effective
registration statement under the Securities Act or as provided in Section
14 of the Registration Rights Agreement.
(d) No Intention of Board to Pay Dividends. Pall acknowledges that
--------------------------------------
the Board has no obligation to declare, and has no present intention of
declaring, any dividends on the Common Stock.
(e) ▇▇▇▇-▇▇▇▇▇ Act Compliance. Promptly, and in any event in such time
-------------------------
as will avoid any delay in any of the Closings at the respective times
provided for in Section 2 of this Agreement, Pall and Vitex will (i)
prepare any required Notification and Report Forms under the ▇▇▇▇-▇▇▇▇▇ Act
with respect to the acquisition of any Shares by Pall, (ii) file such forms
with the United States Federal Trade Commission and Department of Justice,
and (iii) respond to any request for additional information in connection
with such filing.
(f) Consents and Approvals. Vitex and Pall will use their respective
----------------------
reasonable best efforts to obtain as promptly as practicable any consent or
approval of any Person, including any regulatory authority, required in
connection with the transactions contemplated by the Agreements.
(g) Black-Out Period. In connection with the IPO, Pall agrees that
----------------
if required by the managing underwriters, Pall will undertake to them, on
the same terms as the other significant pre-IPO stockholders of Vitex, that
it will not effect any offer, sale or other disposition of any of the
Shares (except to a subsidiary of Pall) for a period of not more than 180
days from the IPO Closing Date.
(h) Standstill Agreement.
--------------------
(i) Pall agrees that, without the prior consent of the Board, it
will not at any time, nor will it permit any of its subsidiaries to,
acquire directly or indirectly, by purchase or otherwise, record
ownership or beneficial ownership (within the meaning of Rule 13d-3
under the Securities Exchange Act of 1934, as amended (the "Exchange
Act")) of any voting securities of Vitex other than the Shares , or
rights or options to acquire, or securities convertible into or
exchangeable for, any such voting securities (such voting securities
other than the Shares, and such rights, options and convertible or
exchangeable securities, being herein defined as "Other
-xxii-
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Securities"), if after such acquisition (and giving effect to the
exercise of any such rights or options or the conversion or exchange
of such securities), Pall and its subsidiaries would beneficially own
in the aggregate capital stock of Vitex having 20% or more of the
voting power of all outstanding shares of Vitex entitled to vote in
the election of directors generally (the "Voting Power"); provided
that (i) subsequent reductions in the number of outstanding shares of
outstanding capital stock of Vitex (or rights or options therefor)
shall not be deemed to cause a violation of this subsection 5(h)(i),
and (ii) the term "Other Securities" shall not include any voting
securities of Vitex, or any rights or options to acquire, or
securities convertible into or exchangeable for, any such voting
securities, which Pall may acquire pursuant to any provision of this
Agreement (including paragraph 5(h)(v)).
(ii) If at any time Pall and/or its subsidiaries are the record
owners or beneficial owners in the aggregate of capital stock of Vitex
having 20% or more of the Voting Power and such capital stock includes
Other Securities, such Other Securities, only to the extent that
Pall's Voting Power exceeds 20%, shall be deemed to be "Prohibited
Securities." Pall agrees that neither it nor any of its subsidiaries
shall (and neither it nor any of its subsidiaries shall be entitled
to) vote any Prohibited Securities with respect to any matter subject
to the vote or written consent of Vitex's stockholders, provided that
the foregoing shall not be deemed to limit Vitex's remedies in the
event that the Prohibited Securities were acquired in violation of
subsection 5(h)(i).
(iii) In the event that as a result of the purchase of Shares at
any Closing, Pall and its subsidiaries become the record owners or
beneficial owners of Prohibited Securities, Pall agrees that, as soon
as and in a manner that is commercially reasonable, Pall will, and
will cause its subsidiaries to, sell or otherwise dispose of such
number of Prohibited Securities as will reduce Pall's Voting Power to
less than 20%, provided that Pall and its subsidiaries shall not be
obligated so to sell or otherwise dispose of Prohibited Securities at
any time or in any manner which would, in the reasonable opinion of
counsel to Pall, (I) cause Pall or any of its subsidiaries to be
liable to Vitex pursuant to Section 16(b) of the Exchange Act, or (II)
result in a violation by Pall or any of its subsidiaries of Section 5
or 17(a) of the Securities Act, or Section 10(b) of the Exchange Act
or Rule 10b-5 thereunder.
(iv) Pall agrees that, without the prior consent of the Board,
it will not at any time, nor will it permit any of its subsidiaries
to: (A) solicit proxies to vote any securities of Vitex under any
circumstances for a change in the directors or
-xxiii-
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management of Vitex, or in connection with a merger or acquisition of
the Company, or deposit any securities of Vitex in a voting trust or
subject them to a voting agreement or other agreement of similar
effect (other than the First Stockholders' Agreement or a revocable
proxy granted by Pall with respect to shares of Common Stock which are
not Prohibited Securities); (B) initiate, propose, or otherwise
solicit any stockholder of Vitex for the approval of, or induce or
attempt to induce any other person to initiate, any stockholder
proposal for a change in the directors or management of Vitex or in
connection with a merger or acquisition of Vitex; or (C) take any
action individually or jointly with any Person or group, or assist any
Person or group in taking any action, which it could not take
individually under the terms of this paragraph 5(h).
(v) The preceding provisions in this paragraph 5(h) shall
terminate in the event that
(A) any Person or 13D Group (defined below) other than Pall
or an Affiliate, as defined in Rule 12b-2 under the Exchange Act
("Affiliate"), of Pall shall have commenced a tender offer for a
majority of the outstanding shares of Common Stock (or any other
outstanding class of voting securities of Vitex), or
(B) any Person or 13D Group, other than (x) Pall or an
Affiliate of Pall, (y) any Person which is a stockholder of Vitex
on the date of this Agreement, or any Affiliate of such person or
(z) any Person or 13D Group which has previously entered into an
agreement with Vitex substantially identical to this paragraph
5(h) prior to becoming the direct or indirect owner of 20% of the
Voting Power, shall have become the direct or indirect beneficial
owner of more than 20% of the Voting Power, or
(C) the Board shall (I) approve any transaction set forth in
clause (A) immediately preceding, (II) liquidate Vitex or sell
all or substantially all of the assets of Vitex to another
Person, (III) approve a merger or consolidation of Vitex with any
other Person that would result in the voting securities of Vitex
outstanding immediately prior thereto representing less than a
majority of the voting power to elect a majority of the board of
directors or similar body of the Person surviving such merger or
resulting from such consolidation, or (IV) sell or otherwise
issue to any person voting securities of Vitex having a majority
of the combined Voting Power of the voting
-xxiv-
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securities of Vitex.
In the event of any action by the Board described in the immediately
preceding clause (C), Vitex shall notify Pall at least 15 days prior
to the final approval of such transaction, and any such Board
determination shall be conditioned upon the notification by Vitex to
Pall in compliance with this sentence. For purposes of this
subsection 5(h)(v), a "13D Group" means any group formed for the
purpose of acquiring, holding, voting or disposing of securities of
Vitex that would be required under the Exchange Act, and the rules and
regulations promulgated thereunder, to file a statement on Schedule
13D with the Commission as a "Person" within the meaning of Section
13(d)(3) of the Exchange Act, if such group beneficially owned
sufficient securities to require such a filing. All of the provisions
of this subsection 5(h)(v) shall be reinstated and shall apply in full
force according to their terms in the event that: (x) if the preceding
provisions of this subsection 5(h)(v) shall have terminated as a
result of a tender offer under clause (A) above, such tender offer (as
originally made or as extended or modified) shall have terminated
(without any securities being accepted thereunder for purchase) prior
to the commencement of a tender offer by Pall or any of its
Subsidiaries that would have been permitted pursuant to clause (A) as
a result of such third-party tender offer, (y) any tender offer by
Pall or any of its Affiliates (as originally made or as extended or
modified) that was permitted to be made pursuant to clause (A) shall
have terminated (without any securities being accepted thereunder for
purchase), or (z) if the preceding provisions of this subsection
5(h)(v) shall have terminated as a result of clause (C), the Board
shall have determined to rescind or abandon the previous action
described in clause (C) (and no such action shall have closed) prior
to the commencement of a tender offer by Pall or any of its
Subsidiaries that would have been permitted to be made pursuant to
clause (C), unless prior to such Board determination to rescind or
abandon, a tender offer described in clause (A) above shall have
commenced. Upon reinstatement of the provisions of this subsection
5(h)(v), the preceding provisions of this subsection shall continue to
govern including, without limitation, those that provide for the
termination of the preceding provisions of this subsection 5(h)(v) in
the event that any of the events described in clauses (A), (B) or (C)
shall occur.
(vi) All provisions of this paragraph 5(h) shall terminate (A) at
any time after the last Closing when Pall and its subsidiaries shall
beneficially own shares of capital stock of Vitex having less than 10%
of the Voting Power, or (B) upon the closing of any tender offer for,
or acquisition by Pall or its subsidiaries of, any voting securities
of Vitex, or rights or options to acquire any such securities, that
was permitted by this paragraph 5(h).
-xxv-
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6. Conditions to Closings.
----------------------
(a) Conditions to Pall's Obligations. The obligations of Pall
--------------------------------
hereunder at each Closing shall be subject to the performance by Vitex of
all its obligations hereunder to be performed on or prior to the
corresponding Closing Date, and to the satisfaction, prior thereto or
concurrently therewith, or the waiver by Pall, of each of the following
conditions:
(i) Representations and Warranties. The representations and
------------------------------
warranties of Vitex contained in this Agreement and (with respect to
the Initial Closing only) in the Joint Development Agreement, taken
together with the Disclosure Letter being delivered herewith, shall be
true and correct on and as of such Closing Date as though such
representations and warranties were made at and as of such date,
except as otherwise affected by the transactions contemplated hereby
and except that, at each Closing, (I) Vitex shall deliver to Pall a
new Disclosure Letter, dated the Closing Date of such Closing, setting
forth the exceptions and other information necessary to make Vitex's
representations and warranties herein true and correct as of the
Closing Date for such Closing, and (II) this subsection 6(a)(i) shall
be deemed satisfied provided that the Disclosure Letter for such
Closing, taken as a whole, does not indicate a Material Adverse Effect
since the immediately preceding Disclosure Letter.
(ii) Compliance with Agreements. Vitex shall have performed and
--------------------------
complied with in all material respects all agreements, covenants and
conditions contained in the Agreements which are required to be
performed or complied with by Vitex prior to or on such Closing Date.
(iii) No Legislation or Injunction. There shall have been
----------------------------
adopted no law or regulation, and there shall be no effective or
pending injunction, writ, preliminary restraining order or any order
of any nature issued by a court of competent jurisdiction, prohibiting
the transactions provided for in the Agreements or any of them from
being consummated as therein provided.
(iv) No Material Adverse Effect. There shall have been no
--------------------------
developments in the business or financial condition of Vitex or a
Subsidiary, whether or not set forth in the Disclosure Letter for such
Closing, which in the reasonable opinion of Pall have or are likely to
have a Material Adverse Effect.
-xxvi-
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(v) Consents and Approvals. All filings, consents, waivers,
----------------------
authorizations, licenses, permits, certificates and approvals of any
Person required to have been made or obtained on or prior to such
Closing Date in connection with the execution, delivery and
performance of the Agreements, all of which will be set forth on
Schedule 3(i) of the Disclosure Letter for such Closing, shall have
-------------
been duly made or obtained and shall be in full force and effect on
such Closing Date.
(vi) Officers' Certificate. Vitex shall have delivered to Pall
---------------------
a certificate of Vitex's President and Chief Executive Officer, dated
as of such Closing Date, certifying that the conditions specified in
the foregoing subsections 6(a)(i), (ii), (iii) and (v) hereof have
been fulfilled.
(vii) Opinion of Counsel. Pall shall have received from
------------------
▇▇▇▇▇▇▇, Del Deo, Dolan, Griffinger & ▇▇▇▇▇▇▇▇▇, P.C., counsel to
Vitex, or any other counsel reasonably satisfactory to Pall, a legal
opinion, dated as of such Closing Date, in substantially the form of
Exhibit D hereto.
(viii) Secretary's Certificate. Pall shall have received a
-----------------------
certificate, dated such Closing Date, of the Secretary of Vitex
attaching (i) a true and complete copy of the certificate of
incorporation of Vitex as of such date, certified by the Secretary of
State of Delaware, (ii) a true and complete copy of Vitex's By-Laws as
of such date, (iii) true and complete copies of the certificate of
incorporation and by-laws of each Subsidiary as of such date, (iv)
certificates of good standing of the appropriate officials of the
jurisdictions of incorporation of Vitex and each Subsidiary, New York
and each other jurisdiction in which Vitex and each Subsidiary is
qualified to do business as a foreign corporation, and (v) all
resolutions of the Board authorizing or relating to the execution and
delivery of the Agreements and the transactions contemplated thereby,
the issuance of the Shares and the reservation for issuance of a
sufficient number of Shares pursuant to paragraph 3(h) of this
Agreement.
(ix) Approval of Proceedings. All proceedings to be taken in
-----------------------
connection with the transactions contemplated by the Agreements, and
all documents incident thereto, shall be reasonably satisfactory in
form and substance to Pall and its counsel, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇;
and Pall shall have received copies of all documents or other evidence
which it and such counsel may reasonably request in connection with
such transactions and of all records of corporate proceedings in
connection therewith in form and substance reasonably satisfactory to
Pall and such counsel.
-xxvii-
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(x) Other Agreements. The First Stockholders' Agreement, the
----------------
Second Stockholders' Agreement, the Joint Development Agreement, the
Registration Rights Agreement and the Blood Center Amendment shall
have been executed and delivered by all parties thereto other than
Pall, and shall remain in full force and effect, and all parties to
such agreements other than Pall shall be in substantial compliance
with their obligations thereunder, provided that at the IPO Closing,
the First Stockholders' Agreement shall terminate, and the Second
Stockholders' Agreement shall commence in full force and effect.
(xi) Recent Financial Statements. Vitex shall have provided
---------------------------
Pall with its most recent interim or annual financial statements in
accordance with paragraph 4(b) of this Agreement.
(xii) Antitrust Approvals. The waiting period under the ▇▇▇▇-
-------------------
▇▇▇▇▇ Act and other applicable antitrust regulations of any applicable
jurisdictions shall have expired or been terminated, if necessary to
permit such Closing to occur without its constituting a violation of
the ▇▇▇▇-▇▇▇▇▇ Act, provided that (i) if this condition is not
satisfied as of the time provided in Section 2 of this Agreement for
any Closing, and (ii) Pall and Vitex are both in compliance with
paragraph 5(e) of this Agreement, such Closing shall be adjourned
until not later than the tenth business day after this condition shall
have been satisfied.
(xiii) Director Designee. Pursuant to the First Stockholders'
-----------------
Agreement or the Second Stockholders' Agreement and paragraph 4(a) of
this Agreement, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇-Surry, or his successor as designated
by Pall, shall be serving as a duly elected director of Vitex.
(b) Conditions to Vitex's Obligations. The obligations of Vitex at
---------------------------------
each Closing shall be subject to the performance by Pall of all of its
obligations hereunder to be performed on or prior to the corresponding
Closing Date, and to the satisfaction, prior thereto or concurrently
therewith, or the waiver by Vitex, of each of the following conditions:
(i) No Legislation or Injunction. There shall have been
----------------------------
adopted no law or regulation, and there shall be no effective or
pending injunction, writ, preliminary restraining order or any order
of any nature issued by a court of competent jurisdiction, prohibiting
the transactions provided for in the Agreements or any of them from
being consummated as therein provided.
-xxviii-
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(ii) Consents and Approvals. All filings, consents, waivers,
----------------------
authorizations, licenses, permits, certificates and approvals of any
Person required to have been made or obtained on or prior to such
Closing Date in connection with the execution, delivery and
performance of the Agreements, all of which are set forth on Schedule
--------
3(i) of the Disclosure Letter for such Closing, shall have been duly
----
made or obtained and shall be in full force and effect on such Closing
Date.
(iii) Officer's Certificate. Pall shall have delivered to Vitex
---------------------
a certificate of the Chairman and Chief Executive Officer or the
President of Pall, dated as of such Closing Date, certifying that (A)
the representations and warranties of Pall contained in this Agreement
and (with respect to the Initial Closing only) in the Joint
Development Agreement are true as of such Closing Date as though such
representations and warranties were made at and as of such date, and
(B) Pall shall have performed and complied with in all material
respects all agreements, covenants and conditions contained in the
Agreements which are required to be performed or complied with by Pall
prior to or on such Closing Date.
(iv) Antitrust Approvals. The waiting period under the ▇▇▇▇-
-------------------
▇▇▇▇▇ Act and other applicable antitrust regulations of any applicable
jurisdictions shall have expired or been terminated, if necessary to
permit such Closing to occur without its constituting a violation of
the ▇▇▇▇-▇▇▇▇▇ Act, provided that (i) if this condition is not
satisfied as of the time provided in Section 2 of this Agreement for
any Closing, and (ii) Pall and Vitex are both in compliance with
paragraph 5(e) of this Agreement, such Closing shall be adjourned
until not later than the tenth business day after this condition shall
have been satisfied.
(v) Secretary's Certificate. Vitex shall have received a
-----------------------
certificate, dated such Closing Date, of the Secretary of Pall
attaching all resolutions of the Board of Directors of Pall and its
Executive Committee authorizing or relating to the execution and
delivery of the Agreements to which Pall is a party, and the
transactions contemplated thereby.
(vi) Approval of Proceedings. All proceedings to be taken in
-----------------------
connection with the transactions contemplated by the Agreements, and
all documents incident thereto, shall be reasonably satisfactory in
form and substance to Vitex and its counsel, ▇▇▇▇▇▇▇, Del Deo, Dolan,
Griffinger & ▇▇▇▇▇▇▇▇▇, P.C.; and Vitex shall have received copies of
all documents or other evidence which it and such counsel may
reasonably request in connection with such transactions and of all
records of
-xxix-
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Section No.
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corporate proceedings in connection therewith in form and substance
reasonably satisfactory to Pall and such counsel.
(vii) Other Agreements. The Joint Development Agreement shall
----------------
have been executed and delivered by Pall and shall remain in full
force and effect, and Pall shall be in substantial compliance with its
obligations thereunder.
7. Expenses. Except as provided in Sections 5 and 8 of the Registration
--------
Rights Agreement, Pall and Vitex shall each bear their respective out-of-pocket
expenses incurred in connection with the transactions contemplated by the
Agreements, including without limitation, the reasonable fees and disbursements
of their respective counsel. Vitex shall pay all finders' or brokers' fees or
similar payments incurred by it in connection with such transactions. Pall
represents and warrants that it has not incurred any liability for, and is
unaware of any claim for, any finders' or brokers' fees or similar payments in
connection with the transactions contemplated hereby.
8. Notices. All notices and other communications provided for or
-------
permitted hereunder shall be made in writing by hand delivery or registered
first class mail, postage prepaid, return receipt requested, or air courier
guaranteeing overnight delivery to the following addresses:
If to Pall:
Pall Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Secretary
with a copy to:
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
If to Vitex:
V.I. Technologies, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: President
-xxx-
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with a copy to:
▇▇▇▇▇▇▇, Del Deo, Dolan, Griffinger & ▇▇▇▇▇▇▇▇▇, P.C.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇., Esq.
All such notices and communications shall be deemed to have been duly given
and received at the time delivered by hand, if personally delivered; five
business days after being deposited in the mail, postage prepaid, if mailed; and
on the next business day, if timely delivered to an air courier guaranteeing
overnight delivery. Either party may change its address for notices by a notice
to the other party given in accordance with this section.
9. Parties; Assignment. This Agreement will inure to the benefit of and
-------------------
be binding upon Pall, Vitex and their respective successors and permitted
assigns. This Agreement is for the sole and exclusive benefit of Pall and Vitex
and their respective successors and permitted assigns, and for the benefit of no
other person, and no other person will have any legal or equitable right, remedy
or claim under, or in respect of, this Agreement. The rights and obligations
provided for in this Agreement may not be assigned or transferred in whole or in
part by either party hereto without the prior consent in writing of the other
party, provided that Pall can assign any or all of its rights and obligations
hereunder to one or more of its wholly-owned subsidiaries. Except as provided
in the Registration Rights Agreement, no purchaser or transferee of any of the
Shares from Pall will be deemed a successor or assign of Pall entitled to any
benefits of the Agreements, merely by reason of such purchase.
10. Survival of Provisions. All warranties, representations and covenants
----------------------
made by Pall and Vitex in the Agreements or in any certificate or other
instrument delivered by Pall or Vitex under the Agreements shall be considered
to have been relied upon by Vitex or Pall, as the case may be, and shall survive
all deliveries to Pall of the Shares, or payment to Vitex for such Shares, for a
period of one year following each Closing with respect to the Shares sold at
such Closing, regardless of any investigation made by Vitex or Pall, as the case
may be, or on Vitex's or Pall's behalf. All statements in any such certificate
or other instrument shall constitute warranties and representations by Vitex or
Pall, as the case may be, hereunder.
11. Amendment and Modification. Neither this Agreement, nor any term or
--------------------------
provision hereof, may be changed, waived, discharged, amended, modified or
terminated in any manner other than by an instrument in writing signed by the
party to be charged therewith.
-xxxi-
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12. Further Assurances. Pall and Vitex will perform any and all acts and
------------------
execute any and all documents as may be necessary and proper under the
circumstances in order to accomplish the intent and purposes of this Agreement
and to carry out its provisions. Each such party shall use its reasonable
efforts to fulfill or obtain the fulfillment of the respective conditions to
each Closing as promptly as practicable.
13. Waiver of Breach. The failure of any party hereto to insist upon
----------------
strict performance of any of the covenants and agreements herein contained, or
to exercise any option or right herein conferred in any one or more instances,
will not be construed to be a waiver or relinquishment of any such option or
right, or of any other covenants or agreements, and the same will be and remain
in full force and effect.
14. Remedies. In addition to being entitled to exercise all rights
--------
provided herein and any and all legal remedies in the event of a breach of this
Agreement, including recovery of liquidated or other damages, Pall and Vitex
each agree (i) that the other will be entitled to specific performance of its
rights under this Agreement, (ii) that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by it of the provisions
of this Agreement, and (iii) that it will waive the defense in any action for
specific performance that a remedy at law would be adequate. In addition, if
Vitex shall be in breach of its obligation to issue any Shares to Pall pursuant
to this Agreement, Pall shall have the right to acquire from other stockholders
of Vitex a number of shares of Common Stock less than or equal to the number of
Shares that would have been issued to Pall but for such breach. Such shares as
acquired by Pall shall be deemed to be Shares acquired pursuant to this
Agreement at a Closing for purposes of paragraph 5(h) of this Agreement.
Notwithstanding the foregoing, in no event shall the provisions of this Section
14 permit Pall to own at any time more shares of Common Stock than Pall would
have been entitled to own pursuant to paragraph 5(h) of this Agreement if Vitex
had not been in breach of this Agreement with respect to the sale of Shares to
Pall.
15. Entire Agreement. This Agreement (including the exhibits hereto) and
----------------
the Joint Development Agreement (including the exhibits thereto) constitute the
entire agreement and understanding of the parties with respect to their entire
subject matter, and there are no representations, inducements, promises or
agreements, oral or otherwise, not embodied therein. Any and all prior
discussions, negotiations, commitments and understandings relating to the
subject matter of this Agreement and the Joint Development Agreement, including,
without limitation, the Letter of Intent, are superseded hereby. There are no
conditions precedent to the effectiveness of the Agreements other than as stated
therein, and there are no related collateral agreements existing between the
parties that are not referred to therein.
-xxxii-
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16. Severability. In the event that any part or parts of this Agreement
------------
shall be held illegal or unenforceable by any court or administrative body of
competent jurisdiction, such determination shall not affect the remaining
provisions of this Agreement which shall remain in full force and effect.
17. Counterparts. This Agreement may be executed in counterparts and each
------------
of such counterparts will for all purposes be deemed to be an original, and such
counterparts will together constitute one and the same instrument.
18. Governing Law; Consent to Jurisdiction. This Agreement will be deemed
--------------------------------------
to have been made and delivered in the State of New York and will be governed as
to validity, interpretation, construction, effect and in all other respects by
the internal laws of the State of New York. Pall and Vitex (a) agree that any
legal suit, action or proceeding arising out of or relating to this Agreement
may be instituted in the Supreme Court of the State of New York, County of
Nassau, or in the United States District Court for the Southern District of New
York, (b) waive any objection to the venue of any such suit, action or
proceeding, and (c) irrevocably consent to the jurisdiction of the Supreme Court
of the State of New York, County of Nassau, and the United States District Court
for the Southern District of New York in any such suit, action or proceeding.
Both parties further agree to accept and acknowledge service of any and all
process which may be served in any such suit, action or proceeding in such
courts and agree that service of process sent by registered mail, return receipt
requested, to the other party at such party's then current address under Section
8 of this Agreement will be deemed in every respect effective service of process
in any such suit, action or proceeding.
IN WITNESS WHEREOF, Vitex and Pall have each caused this Agreement to be
executed by its duly authorized officer, each as of the date first above
written.
V.I. TECHNOLOGIES, INC.
/s/ ▇▇▇▇ ▇▇▇▇
By: -----------------------------------------------------
Print Name:
Title:
PALL CORPORATION
-xxxiii-
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/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇-Surry
By: ---------------------------------------------------
Print Name:
Title:
-xxxiv-
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EXHIBIT A
FIRST STOCKHOLDERS' AGREEMENT
A-i
Page
Section No.
------- ----
EXHIBIT B
SECOND STOCKHOLDERS' AGREEMENT
THIS SECOND STOCKHOLDERS' AGREEMENT is made and entered into as of the
19th day of February, 1998, by and among the undersigned holders (the
"Stockholders") of Common Stock, par value $0.01 per share ("Common Stock"), of
V.I. Technologies, Inc., a Delaware corporation (the "Company"), and Pall
Corporation, a New York corporation ("Pall").
WHEREAS, the Stockholders currently hold of record an aggregate of
22,103,362 of the issued and outstanding shares of Common Stock; and
WHEREAS, it is a condition to Pall's obligations under the Stock Purchase
Agreement dated as of February 19, 1998, between Pall and the Company (the
"Stock Purchase Agreement") that the Stockholders provide for the voting of
their shares of Common Stock in accordance with the terms hereof after the "IPO
Closing" (as defined in the Stock Purchase Agreement);
NOW, THEREFORE, in order to satisfy such condition, and in consideration of
the mutual covenants and agreements contained herein and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Stockholders and Pall agree as follows:
1. Representation on Board of Directors
------------------------------------
1.1 Each Stockholder agrees that, effective as of the IPO Closing, and for
so long thereafter as this Agreement remains in effect, it will vote all shares
of voting stock of the Company held of record by it (and all other such shares
the voting of which is within its sole control, or within the shared control of
Stockholders only), and otherwise use all reasonable efforts, to elect and
maintain in office as a director of the Company one person who is nominated by
Pall from time to time and who is a Qualified Director. Such nomination shall
be made by Pall in accordance with the terms of subsection 4(a)(i) of the Stock
Purchase Agreement. For purposes of this Agreement, voting stock shall mean the
Common Stock and any other class of equity securities of the Company the holders
of which have the right to vote together with holders of Common Stock in the
election of directors. A Qualified Director shall be a person (A) who is
qualified to serve as a director of the Company under applicable law, (B) who
has consented to serve as a director of the Company, (C) who has not been barred
from serving as a director of an entity having securities registered under the
Securities Exchange Act of 1934, (D) with respect to whom no disclosure would be
required by Vitex in response to Item 401(f) of Regulation S-K of the Securities
and Exchange Commission, and (E) whose service as a director of the Company (i)
will not result in the delisting of, or inability to
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list, any class of the Company's equity securities on any national securities
exchange or on the Nasdaq National or Small Cap Stock Market, or (ii) will not,
in the good faith judgment of the Company's Board of Directors, result in the
loss or material limitation of, or refusal to grant, any license, permit or
approval that is material to the Company's business.
Pall has initially nominated ▇▇▇▇▇▇ ▇▇▇▇▇▇▇-Surry to serve as a director of
the Company, and the Stockholders acknowledge that, as of the date of this
Agreement, to the best of their knowledge, he is a Qualified Director.
1.2 At such time as the Joint Development, Marketing and Distribution
Agreement between Pall and Vitex is no longer in effect, Pall shall lose its
right to nominate a person to serve as a director of the Company and this
Agreement shall terminate. In addition, this Agreement shall terminate
immediately if Pall shall purchase securities of the Company in violation of
paragraph 5(i) of the Stock Purchase Agreement, or shall commence a tender offer
for equity securities of the Company unless such tender offer either (A) has the
prior approval of the Company's Board of Directors, or (B) is permitted by
paragraph 5(i) of the Stock Purchase Agreement.
1.3 In the event that any member of the Company's Board of Directors
nominated by Pall pursuant to Section 1.1 resigns or otherwise ceases to be a
member of the Board of Directors for any reason, or in the event that Pall shall
nominate a person who is a Qualified Director to succeed its nominee on the
Board of Directors, the Stockholders shall use their reasonable best efforts to
nominate and elect a successor director in accordance with Pall's rights of
nomination as provided in Section 1.1 of this Agreement (unless the Board of
Directors shall have promptly elected such successor).
1.4 As long as this Agreement remains in effect, the Stockholders shall
not take any action to remove from office any director nominated pursuant to
Section 1.1 unless such director shall not be a Qualified Director or unless
Pall shall nominate a successor as provided in Section 1.3.
2. Miscellaneous
-------------
2.1 This Agreement shall be binding upon and inure to the benefit of the
respective heirs, executors, administrators, assigns, transferees and successors
in interest of the parties hereto. Any person who becomes a record holder of
voting stock of the Company after the date hereof may become a party to this
Agreement by executing a counterpart hereof and upon such execution shall,
without further action on the part of the Stockholders, be deemed a
"Stockholder" for all purposes of this Agreement.
2.2 This Agreement shall be governed by and construed in accordance with
the laws of
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the State of Delaware.
2.3 This Agreement may be executed in counterparts, all of which together
shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have each executed this Agreement as
of the date first above written.
STOCKHOLDERS:
PALL CORPORATION CB CAPITAL INVESTORS, L.P.
By: CB Capital Partners, Inc.,
its general partner
By: /s/ ▇. ▇▇▇▇▇▇▇-Surry By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------ ----------------------------
Print Name: ▇. ▇▇▇▇▇▇▇-Surry Print Name:
Title: President Title:
NEW YORK BLOOD CENTER, INC.
/s/ ▇▇▇▇ ▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------- ----------------------------
▇▇▇▇ ▇▇▇▇ Print Name:
Title:
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ AMPERSAND SPECIALTY MATERIALS
--------------------------- AND CHEMICALS II LIMITED PARTNERSHIP
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
By: ASMC Management Company
Limited Partnership
By: ASMC-II MCLP LLP,
its General Partner
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By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------------------------
Print Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing General Partner
AMPERSAND SPECIALTY MATERIALS AND
CHEMICALS III LIMITED PARTNERSHIP
By: ASMC III Management Company
Limited Partnership
By: ASMC-III MCLP LLP,
its General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------------------------
Print Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing General Partner
LABORATORY PARTNERS I
LIMITED PARTNERSHIP
By: Ampersand ▇▇▇ ▇▇▇▇▇▇▇▇ Management
Company Limited Partnership
By: Ampersand ▇▇▇ ▇▇▇▇▇▇▇▇ MCLP LLP,
its General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------------------------
Print Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing General Partner
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AMPERSAND SPECIALTY MATERIALS AND
CHEMICALS III COMPANION FUND
LIMITED PARTNERSHIP
By: ASMC III Management Company
Limited Partnership
By: ASMC-III MCLP LLP,
its General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------------------------
Print Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing General Partner
LABORATORY PARTNERS COMPANION
FUND LIMITED PARTNERSHIP
By: Ampersand ▇▇▇ ▇▇▇▇▇▇▇▇ Management
Company Limited Partnership
By: Ampersand ▇▇▇ ▇▇▇▇▇▇▇▇ MCLP LLP,
its General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------------------------
Print Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing General Partner
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EXHIBIT C
REGISTRATION RIGHTS AGREEMENT
D-i
[See Exhibit 10.17 to the Registration Statement]