UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
(Rule 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT
TO § 240.13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO
§ 240.13d-2(a)
(Amendment No. 1)1
Nabi Biopharmaceuticals
(Name of Issuer)
Common Stock, par value $0.10 per share
(Title of Class of Securities)
629519109
(CUSIP Number)
WARD DIETRICH
THE MANGROVE PARTNERS FUND, L.P.
c/o Mangrove Partners
10 East 53rd Street, 31st Floor
New York, New York 10022
(646) 470-9450
OLSHAN FROME WOLOSKY LLP
Park Avenue Tower
65 East 55th Street
New York, New York 10022
(212) 451-2300
Authorized to Receive Notices and Communications)
July 13, 2012
(Date of Event Which Requires Filing of This Statement)
If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§ 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box x.
Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See § 240.13d-7 for other parties to whom copies are to be sent.
_______________
1 The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).
CUSIP NO. 629519109
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1
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NAME OF REPORTING PERSON
THE MANGROVE PARTNERS FUND, L.P.
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2
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
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(a) x
(b) o
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3
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SEC USE ONLY
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4
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SOURCE OF FUNDS
WC
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5
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CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)
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¨
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6
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CITIZENSHIP OR PLACE OF ORGANIZATION
DELAWARE
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NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
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7
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SOLE VOTING POWER
- 0 -
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8
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SHARED VOTING POWER
3,340,331
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9
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SOLE DISPOSITIVE POWER
- 0 -
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10
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SHARED DISPOSITIVE POWER
3,340,331
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11
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,340,331
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12
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CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
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o
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13
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
7.8%
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14
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TYPE OF REPORTING PERSON
PN
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2
CUSIP NO. 629519109
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1
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NAME OF REPORTING PERSON
MANGROVE PARTNERS
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2
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
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(a) x
(b) o
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3
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SEC USE ONLY
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4
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SOURCE OF FUNDS
AF
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5
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CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)
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¨
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6
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CITIZENSHIP OR PLACE OF ORGANIZATION
CAYMAN ISLANDS
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NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
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7
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SOLE VOTING POWER
- 0 -
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8
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SHARED VOTING POWER
3,340,331
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9
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SOLE DISPOSITIVE POWER
- 0 -
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||
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10
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SHARED DISPOSITIVE POWER
3,340,331
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||
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11
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,340,331
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||
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12
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CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
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o
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13
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
7.8%
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14
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TYPE OF REPORTING PERSON
OO
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3
CUSIP NO. 629519109
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1
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NAME OF REPORTING PERSON
MANGROVE CAPITAL
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2
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
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(a) x
(b) o
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3
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SEC USE ONLY
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||
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4
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SOURCE OF FUNDS
AF
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5
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CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)
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¨
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6
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CITIZENSHIP OR PLACE OF ORGANIZATION
CAYMAN ISLANDS
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NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
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7
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SOLE VOTING POWER
- 0 -
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8
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SHARED VOTING POWER
3,340,331
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9
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SOLE DISPOSITIVE POWER
- 0 -
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||
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10
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SHARED DISPOSITIVE POWER
3,340,331
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||
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11
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,340,331
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||
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12
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CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
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o
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13
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
7.8%
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14
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TYPE OF REPORTING PERSON
OO
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4
CUSIP NO. 629519109
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1
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NAME OF REPORTING PERSON
NATHANIEL AUGUST
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2
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
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(a) x
(b) o
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3
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SEC USE ONLY
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4
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SOURCE OF FUNDS
AF
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5
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CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)
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¨
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6
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CITIZENSHIP OR PLACE OF ORGANIZATION
USA
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NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
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7
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SOLE VOTING POWER
- 0 -
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8
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SHARED VOTING POWER
3,340,331
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||
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9
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SOLE DISPOSITIVE POWER
- 0 -
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||
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10
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SHARED DISPOSITIVE POWER
3,340,331
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||
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11
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,340,331
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||
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12
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CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
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o
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13
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
7.8%
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14
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TYPE OF REPORTING PERSON
IN
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5
CUSIP NO. 629519109
The following constitutes Amendment No. 1 to the Schedule 13D filed by the undersigned (“Amendment No. 1”). This Amendment No. 1 amends the Schedule 13D as specifically set forth herein.
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Item 3.
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Source and Amount of Funds or Other Consideration.
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Item 3 is hereby amended and restated to read as follows:
The Shares purchased by Mangrove Fund were purchased with working capital (which may, at any given time, include margin loans made by brokerage firms in the ordinary course of business) in open market purchases, except as otherwise noted, as set forth in Schedule A. The aggregate purchase price of the 3,340,331 Shares beneficially owned by Mangrove Fund is approximately $5,795,601, excluding brokerage commissions.
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Item 4.
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Purpose of Transaction.
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Item 4 is hereby amended to add the following:
On July 13, 2012, the Reporting Persons filed with the Securities and Exchange Commission a preliminary proxy statement in connection with their solicitation of proxies in opposition to certain proposals (the “Transaction Proposals”) in connection with the transaction contemplated by the Merger Implementation Agreement, dated as of April 22, 2012, by and among the Issuer and Biota Holdings Limited, a Melbourne, Australia company (“Biota”), pursuant to which each outstanding ordinary share of Biota capital stock will be acquired by the Issuer in exchange for newly issued Shares of the Issuer pursuant to a scheme of arrangement under Australian corporate law (the “Transaction”).
The Reporting Persons oppose the proposed Transaction and Transaction Proposals chiefly because they believe that the proposed Transaction is an inferior alternative to a plan that provides for the return of substantially all of the cash on the Issuer’s balance sheet to its stockholders and that the interests of the Issuer’s management and Board of Directors are not aligned with the best interests of stockholders in connection with the proposed Transaction. The Reporting Persons believe that an alternative structure exists for an orderly wind-down of the Issuer outside of a formal Delaware liquidation that, if implemented, would deliver superior value to the Issuer’s stockholders.
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Item 5.
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Interest in Securities of the Issuer.
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Items 5(a) is hereby amended and restated to read as follows:
(a) The aggregate percentage of Shares reported owned by each Reporting Person is based upon 42,877,226 Shares outstanding as of May 15, 2012, which is the total number of Shares outstanding as reported in the Issuer’s preliminary proxy statement on Form PREM 14A filed with the Securities and Exchange Commission on June 8, 2012.
As of the close of business on July 17, 2012, Mangrove Fund beneficially owned 3,340,331 Shares, constituting approximately 7.8% of the Shares outstanding. Mangrove Partners, as the investment manager of Mangrove Fund, may be deemed the beneficial owner of the 3,340,331 Shares owned by Mangrove Fund. Mangrove Capital, as the general partner of Mangrove Fund, may be deemed the beneficial owner of the 3,340,331 Shares owned by Mangrove Fund. Mr. August, as a Director of each of Mangrove Partners and Mangrove Capital, may be deemed the beneficial owner of the 3,340,331 Shares owned by Mangrove Fund.
6
CUSIP NO. 629519109
Items 5(c) is hereby amended and restated to read as follows:
(c) Schedule A annexed hereto lists all transactions in securities of the Issuer by the Reporting Persons since the filing of the Schedule 13D.
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Item 6.
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Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer.
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Item 6 is hereby amended to add the following:
On July 17, 2012, the Reporting Persons entered into a Joint Filing and Solicitation Agreement in which, among other things, (a) the Reporting Persons agreed to the joint filing on behalf of each of them of statements on Schedule 13D with respect to the securities of the Issuer, (b) the Reporting Persons agreed to solicit proxies or written consents in opposition to the Company’s proposals in connection with the proposed Transaction (the “Solicitation”) and (c) Mangrove Fund agreed to bear all expenses incurred in connection with the Solicitation, including approved expenses incurred by any of the parties in connection with the Solicitation, subject to certain limitations. A copy of this agreement is attached hereto as Exhibit 99.1 and is incorporated herein by reference.
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Item 7.
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Material to be Filed as Exhibits.
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Item 7 is hereby amended to add the following exhibit:
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99.1
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Joint Filing and Solicitation Agreement by and among The Mangrove Partners Fund, L.P., Mangrove Capital, Mangrove Partners and Nathaniel August, dated July 17, 2012.
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7
CUSIP NO. 629519109
SIGNATURES
After reasonable inquiry and to the best of his knowledge and belief, each of the undersigned certifies that the information set forth in this statement is true, complete and correct.
Dated: July 17, 2012
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THE MANGROVE PARTNERS FUND, L.P.
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By:
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MANGROVE CAPITAL,
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General Partner
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By:
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/s/ Nathaniel August
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Name:
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Nathaniel August
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Title:
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Director
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MANGROVE PARTNERS
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By:
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/s/ Nathaniel August
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Name:
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Nathaniel August
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Title:
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Director
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MANGROVE CAPITAL
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By:
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/s/ Nathaniel August
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Name:
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Nathaniel August
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Title:
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Director
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/s/ Nathaniel August
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NATHANIEL AUGUST
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8
CUSIP NO. 629519109
SCHEDULE A
Transactions in the Shares Since the Filing of the Schedule 13D
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Shares of Common Stock
Purchased
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Price Per
Share($)
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Date of
Purchase
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THE MANGROVE PARTNERS FUND, L.P.
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105,972
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1.6300
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07/10/2012
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13,578
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1.6200
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07/11/2012
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120,513
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1.6100
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07/12/2012
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3,400
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1.6100
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07/13/2012
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99,200
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1.6100
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07/16/2012
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35,694
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1.6100
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07/17/2012
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JOINT FILING AND SOLICITATION AGREEMENT
WHEREAS, certain of the undersigned are stockholders, direct or beneficial, of Nabi Biopharmaceuticals, a Delaware corporation (the “Company”);
WHEREAS, The Mangrove Partners Fund, L.P., a Delaware limited partnership (“Mangrove Fund”), Mangrove Partners, a Cayman Islands exempted company (“Mangrove Partners”), Mangrove Capital, Cayman Islands exempted company (“Mangrove Capital”) and Nathaniel August wish to form a group for the purpose of soliciting proxies or written consents in opposition to the Company’s proposals in connection with the proposed transaction with Biota Holdings Limited, a Melbourne, Australia company, pursuant to that certain Merger Implementation Agreement, dated as of April 22, 2012 (the “Transaction”) at the special meeting of the stockholders of the Company (including any other meeting of stockholders held in lieu thereof, and any adjournments, postponements, reschedulings or continuations thereof, the “Special Meeting”) and for the purpose of taking all other action necessary to achieve the foregoing.
NOW, IT IS AGREED, this 17th day of July 2012 by the parties hereto:
1. In accordance with Rule 13d-1(k)(1)(iii) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), each of the undersigned (collectively, the “Group”) agrees to the joint filing on behalf of each of them of statements on Schedule 13D, and any amendments thereto, with respect to the securities of the Company. Each member of the Group shall be responsible for the accuracy and completeness of his/its own disclosure therein, and is not responsible for the accuracy and completeness of the information concerning the other members, unless such member knows or has reason to know that such information is inaccurate.
2. So long as this agreement is in effect, each of the undersigned shall provide written notice to Olshan Frome Wolosky LLP (“Olshan”) of (i) any of their purchases or sales of securities of the Company; or (ii) any securities of the Company over which they acquire or dispose of beneficial ownership. Notice shall be given no later than 24 hours after each such transaction.
3. Each of the undersigned agrees to form the Group for the purpose of (i) soliciting proxies or written consents in opposition to the Company’s proposals in connection with the proposed Transaction at the Special Meeting, (ii) taking such other actions as the parties deem advisable, and (iii) taking all other action necessary or advisable to achieve the foregoing.
4. Mangrove Fund shall have the right to pre-approve all expenses incurred in connection with the Group’s activities and agrees to pay directly all such pre-approved expenses.
5. Each of the undersigned agrees that any SEC filing, press release or stockholder communication proposed to be made or issued by the Group or any member of the Group in connection with the Group’s activities set forth in Section 3 shall be first approved by Mangrove Fund, or its representatives, which approval shall not be unreasonably withheld.
6. The relationship of the parties hereto shall be limited to carrying on the business of the Group in accordance with the terms of this Agreement. Such relationship shall be construed and deemed to be for the sole and limited purpose of carrying on such business as described herein. Nothing herein shall be construed to authorize any party to act as an agent for any other party, or to create a joint venture or partnership, or to constitute an indemnification. Nothing herein shall restrict any party’s right to purchase or sell securities of the Company, as he/it deems appropriate, in his/its sole discretion, provided that all such sales are made in compliance with all applicable securities laws.
7. This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which, taken together, shall constitute but one and the same instrument, which may be sufficiently evidenced by one counterpart.
8. In the event of any dispute arising out of the provisions of this Agreement or their investment in the Company, the parties hereto consent and submit to the exclusive jurisdiction of the Federal and State Courts in the State of New York.
9. Any party hereto may terminate his/its obligations under this Agreement on 24 hours’ written notice to all other parties, with a copy by fax to Steve Wolosky at Olshan, Fax No. (212) 451-2222.
10. Each party acknowledges that Olshan shall act as counsel for both the Group and Mangrove Fund and its affiliates relating to their investment in the Company.
11. Each of the undersigned parties hereby agrees that this Agreement shall be filed as an exhibit to a Schedule 13D pursuant to Rule 13d-1(k)(1)(iii) under the Exchange Act.
2
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the day and year first above written.
Dated: July 17, 2012
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THE MANGROVE PARTNERS FUND, L.P.
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By:
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MANGROVE CAPITAL,
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General Partner
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By:
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/s/ Nathaniel August
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Name:
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Nathaniel August
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Title:
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Director
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MANGROVE PARTNERS
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By:
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/s/ Nathaniel August
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Name:
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Nathaniel August
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Title:
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Director
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MANGROVE CAPITAL
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By:
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/s/ Nathaniel August
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Name:
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Nathaniel August
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Title:
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Director
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/s/ Nathaniel August
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NATHANIEL AUGUST
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