This document contains 15 pages. The exhibit index is located on page 6.
As filed with the Securities and Exchange Commission on June 4, 1998
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
NABI
(Exact name of issuer as specified in its charter)
DELAWARE 59-1212264
(State or other jurisdiction (I.R.S. employer identification no.)
of incorporation or organization)
5800 PARK OF COMMERCE BOULEVARD, N.W., BOCA RATON, FLORIDA 33487
(Address of principal executive offices)
-------------------------
1998 NON-QUALIFIED EMPLOYEE STOCK OPTION PLAN
OPTION AGREEMENTS WITH NON-EMPLOYEE DIRECTORS
(Full title of plans)
-------------------
DAVID J. GURY Copy to:
NABI CONSTANTINE ALEXANDER, ESQ.
5800 PARK OF COMMERCE BOULEVARD, N.W. NUTTER, MCCLENNEN & FISH, LLP
BOCA RATON, FLORIDA 33487 ONE INTERNATIONAL PLACE
(561) 989-5800 BOSTON, MASSACHUSETTS 02110-2699
(Name, address and telephone (617) 439-2000
number of agent for service)
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CALCULATION OF REGISTRATION FEE
=================================================================================================================
PROPOSED PROPOSED
MAXIMUM MAXIMUM
TITLE OF EACH CLASS OF SECURITIES TO AMOUNT BEING OFFERING PRICE AGGREGATE OFFERING AMOUNT OF
BE REGISTERED REGISTERED (1) PER SHARE PRICE REGISTRATION FEE
- -----------------------------------------------------------------------------------------------------------------
Common Stock,
$.10 par value per share 2,000,000 Shares $3.34(2) $6,680,000(2) $1,970.60
17,500 $3.63 $ 63,525 18.74
- -----------------------------------------------------------------------------------------------------------------
Total 2,017,500 $6,743,525 $1,989.34
=================================================================================================================
(1) This Registration Statement covers (i) 2,000,000 shares of Common Stock
which may be issued under Nabi's 1998 Non-Qualified Employee Stock Option
Plan, (ii) 17,500 shares of Common Stock which may be issued to Nabi's non-
employee directors pursuant to written option agreements with such
directors, and (iii) an indeterminate number of additional shares of Common
Stock which may be issued under said Plan or to such directors as a result
of a stock dividend, stock split or other recapitalization.
(2) Calculated pursuant to Rules 457(c) and (h) under the Securities Act of
1933 based upon the weighted average of (i) 1,062,108 shares underlying
options granted under the Plan having a per share exercise price of
$3.4375, and (ii) 937,892 shares underlying options to be granted under the
Plan at an assumed per share exercise price of $3.21875, representing
the average of the high and low prices per share of the Common Stock as
reported on the Nasdaq National Market on June 2, 1998.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
---------------------------------------
Nabi (the "Company") hereby incorporates by reference in this Registration
Statement the following documents and information heretofore filed with the
Securities and Exchange Commission (the "Commission"):
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1997 filed pursuant to Sections 13 and 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act");
(b) The Company's Quarterly Report on Form 10-Q for the quarterly period
ended March 31, 1998; and
(c) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 10 filed with the Commission on May 4,
1970, as amended, pursuant to Section 12 of the Exchange Act.
All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act, prior to the filing of any post-
effective amendment which indicates that all securities offered hereunder have
been sold or which deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference in this Registration Statement and to be
a part hereof from the date of filing such documents. Any statement contained
in a document incorporated or deemed to be incorporated by reference herein
shall be deemed to be modified or superseded for purposes of this Registration
Statement to the extent that any other subsequently-filed document which also is
incorporated or deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
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Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
--------------------------------------
The validity of the shares of Common Stock offered hereunder has been
passed upon by Nutter, McClennen & Fish, LLP. Constantine Alexander, a partner
in the firm of Nutter, McClennen & Fish, LLP, is the Secretary of the Company.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
-----------------------------------------
The Company is a Delaware corporation. Reference is made to Section 145 of
the Delaware General Corporation Law, as amended, which provides that a
corporation may indemnify any person who was or is a party to or is threatened
to be made a party to any threatened, pending or completed action, suit or
proceeding whether civil, criminal, administrative or investigative (other than
an action by or in the right of the corporation) by reason of the fact that he
or she is or was a director, officer, employee or agent of the corporation, or
is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, against expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by him or her in
connection with such action,
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suit or proceeding if he or she acted in good faith and in a manner he or she
reasonably believed to be in or not opposed to the best interests of the
corporation and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his or her conduct was unlawful. Section 145 further
provides that a corporation similarly may indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the corporation to procure a
judgment in its favor by reason of the fact that he or she is or was a director,
officer, employee or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees) actually and reasonably incurred by him or
her in connection with the defense or settlement of such action or suit if he or
she acted in good faith and in a manner he or she reasonably believed to be in
or not opposed to the best interests of the corporation and except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the corporation
unless and only to the extent that the Delaware Court of Chancery or the court
in which such action or suit was brought shall determine upon application that,
despite an adjudication of liability but in view of all the circumstances of the
case, such person is fairly and reasonably entitled to indemnity for such
expenses which the Court of Chancery or such other court shall deem proper. The
Company's Certificate of Incorporation further provides that the Company shall
indemnify or exculpate its directors and officers to the fullest extent
permitted by the law of the State of Delaware.
The Company's Certificate of Incorporation provides that the Company's
Directors shall not be personally liable to the Company or its stockholders for
monetary damages for breach of fiduciary duty as a director, except (i) for any
breach of the director's duty of loyalty to the Company or its stockholders,
(ii) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) under Section 174 of the
Delaware General Corporation Law, or (iv) for any transaction from which the
director derived any improper personal benefit.
The Certificate of Incorporation and By-laws also provide that each person
who was or is made party to, or is threatened to be made party to, any action,
suit, proceeding or claim by reason of the fact that he or she is or was a
director or officer of the Registrant (or is or was serving at the request of
the Registrant as a director or officer of any other enterprise, including
service with respect to employee benefit plans) shall be indemnified and held
harmless by the Registrant, to the full extent permitted by Delaware law, as in
effect from time to time, against all expenses (including attorneys' fees),
judgments, fines, and amounts to be paid in settlement incurred by such person
in connection with the investigation, preparation to defend or defense of such
action, suit, proceeding or claim if he or she acted in good faith and in a
manner he or she reasonably believed to be in or not opposed to the best
interests of the corporation and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his or her conduct was unlawful.
The Company's By-laws allow for similar rights of indemnification to be
afforded, in the Company's discretion, to its employees and agents.
The rights to indemnification and the payment of expenses provided by the
Certificate of Incorporation and By-laws do not apply to any action, suit,
proceeding or claim initiated by or on behalf of a person otherwise entitled to
the benefit of such provisions. Any person seeking indemnification under the
By-laws shall be deemed to have met the standard of conduct required for such
indemnification unless the contrary shall be established. Any repeal or
modification of such indemnification provisions shall not adversely affect any
right or protection of a director or officer with respect to any conduct of such
director or officer occurring prior to such repeal or modification.
The Company maintains an indemnification insurance policy covering all
directors and officers of the Company and its subsidiaries.
-3-
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
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Not applicable.
ITEM 8. EXHIBITS.
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See the exhibit index immediately preceding the exhibits attached hereto.
ITEM 9. UNDERTAKINGS.
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(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement to include any
material information with respect to the plan of distribution not previously
disclosed in the registration statement or any material change to such
information in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(4) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the registrant's annual report pursuant
to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to Section
15(d) of the Exchange Act) that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(b) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the provisions of the Delaware General Corporation
Law and the registrant's Certificate of Incorporation and By-laws, or otherwise,
the registrant has been advised that, in the opinion of the Securities and
Exchange Commission, such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy, as expressed in the Act, and
will be governed by the final adjudication of such issue.
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SIGNATURES
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Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Boca Raton, State of Florida, on the 4th day of June
1998.
NABI
By: /s/ David J. Gury
----------------------------------
David J. Gury
Chairman, President and Chief
Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this registration statement has been signed below by the following persons on
behalf of the registrant in the capacities and on the dates indicated.
SIGNATURES TITLE DATE
- ---------- ----- ----
/s/ David J. Gury Chairman of the Board, President, June 4, 1998
- ----------------------------- Chief Executive Officer
David J. Gury
/s/ Thomas H. McLain Senior Vice President, Corporate June 4, 1998
- ----------------------------- Services and Chief Financial Officer
Thomas H. McLain
/s/ Lorraine M. Breece Controller and June 4, 1998
- ----------------------------- Chief Accounting Officer
Lorraine M. Breece
/s/ John C. Carlisle Executive Vice President June 4, 1998
- ----------------------------- and Director
John C. Carlisle
/s/ Joseph C. Cook, Jr. Director June 4, 1998
- -----------------------------
Joseph C. Cook, Jr.
Director
- -----------------------------
Richard A. Harvey, Jr.
/s/ David L. Castaldi Director June 4, 1998
- -----------------------------
David L. Castaldi
/s/ David A. Thompson Director June 4, 1998
- -----------------------------
David A. Thompson
Director
- -----------------------------
George W. Ebright
Director
- -----------------------------
Brian H. Dovey
/s/ Linda Jenckes Director June 4, 1998
- -----------------------------
Linda Jenckes
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EXHIBIT INDEX
Exhibit No. Title Page
- ---------- ----- ----
4.1 1998 Non-Qualified Employee Stock Option Plan 7
4.2 Form of Option Agreement with Non-Employee
Director 12
5 Opinion of Nutter, McClennen & Fish, LLP 14
23.1 Consent of Nutter, McClennen & Fish, LLP Contained in
Exhibit 5
23.2 Consent of Price Waterhouse LLP 15
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EXHIBIT 4.1
NABI
1998 NON-QUALIFIED EMPLOYEE STOCK OPTION PLAN
1. PURPOSE
The purpose of this 1998 Non-Qualified Employee Stock Option Plan (the
"Plan") is to advance the interests of Nabi (the "Company") by enhancing the
ability of the Company and its subsidiaries to attract and retain employees,
consultants or advisers who are in a position to make significant contributions
to the success of the Company, to reward them for their contributions and to
encourage them to take into account the long-term interests of the Company.
The Plan provides for the award of options to purchase shares of the
Company's common stock ("Stock"). Options granted pursuant to the Plan shall be
non-qualified options and not incentive stock options as defined in Section 422
of the Internal Revenue Code of 1986.
2. ELIGIBILITY FOR AWARDS
Persons eligible to receive awards under the Plan shall be all employees,
consultants and advisers of the Company and its subsidiaries who, in the opinion
of the Board, are in a position to make a significant contribution to the
success of the Company and its subsidiaries. Directors and officers of the
Company shall not be eligible to receive awards under the Plan. A subsidiary
for purposes of the Plan shall be a corporation in which the Company owns,
directly or indirectly, stock possessing 50% or more of the total combined
voting power of all classes of stock. Persons selected for awards under the
Plan are referred to herein as "participants".
3. ADMINISTRATION
The Plan shall be administered by the Board of Directors (the "Board") of
the Company. The Board shall have authority, not inconsistent with the express
provisions of the Plan, (a) to grant awards consisting of options to such
participants as the Board may select; (b) to determine the time or times when
awards shall be granted and the number of shares of Stock subject to each award;
(c) to determine the terms and conditions of each award; (d) to prescribe the
form or forms of any instruments evidencing awards and any other instruments
required under the Plan and to change such forms from time to time; (e) to
adopt, amend and rescind rules and regulations for the administration of the
Plan; and (f) to interpret the Plan and to decide any questions and settle all
controversies and disputes that may arise in connection with the Plan. Such
determination of the Board shall be conclusive and shall bind all parties.
Subject to Section 8, the Board shall also have the authority, both generally
and in particular instances, to waive compliance by a participant with any
obligation to be performed by the participant under an award, to waive any
condition or provision of an award, and to amend or cancel any award (and if an
award is canceled, to grant a new award on such terms as the Board shall
specify), except that the Board may not take any action with respect to an
outstanding award that would adversely affect the rights of the participant
under such award without such participant's consent. Nothing in the preceding
sentence shall be construed as limiting the power of the Board to make
adjustments required by Section 5(c) and Section 6(i).
The Board may, in its discretion, delegate some or all of its powers with
respect to the Plan to a committee (the "Committee"), in which event all
references in this Plan (as appropriate) to the Board shall be deemed to refer
to the Committee. The Committee, if one is appointed, shall consist of at least
two directors. A majority of the members of the Committee shall constitute a
quorum, and all determinations of the Committee shall be made by a majority of
its members. Any determination of the Committee under the Plan may be made
without notice or meeting of the Committee by a writing signed by a majority of
the Committee members.
4. EFFECTIVE DATE AND TERM OF PLAN
The Plan shall become effective on the date on which it is approved by the
Board.
No awards shall be granted under the Plan after the completion of ten years
from the date on which the Plan was adopted by the Board, but awards previously
granted may extend beyond that date.
5. SHARES SUBJECT TO THE PLAN
(a) NUMBER OF SHARES. Subject to adjustment as provided in Section 5(c),
the aggregate number of shares of Stock that may be delivered upon the exercise
of awards granted under the Plan shall be 2,000,000. If any award granted under
the Plan terminates without having been exercised in full, or upon exercise is
satisfied other than by delivery of Stock, the number of shares of Stock as to
which such award was not exercised shall be available for future grants within
the limits set forth in this Section 5(a).
(b) SHARES TO BE DELIVERED. Shares delivered under the Plan shall be
authorized but unissued Stock or, if the Board so decides in its sole
discretion, previously issued Stock acquired by the Company and held in its
treasury. No fractional shares of Stock shall be delivered under the Plan.
(c) CHANGES IN STOCK. In the event of a stock dividend, stock split or
combination of shares, recapitalization or other change in the Company's capital
stock, the number and kind of shares of Stock subject to awards then outstanding
or subsequently granted under the Plan, the exercise price of such awards, the
maximum number of shares of Stock that may be delivered under the Plan, and
other relevant provisions shall be appropriately adjusted by the Board, whose
determination shall be binding on all persons.
The Board may also adjust the number of shares subject to outstanding awards
and the exercise price and the terms of outstanding awards to take into
consideration material changes in accounting practices or principles,
extraordinary dividends, consolidations or mergers (except those described in
Section 6(i)), acquisitions or dispositions of stock or property or any other
event if it is determined by the Board that such adjustment is appropriate to
avoid distortion in the operation of the Plan.
6. TERMS AND CONDITIONS OF OPTIONS
(a) EXERCISE PRICE OF OPTIONS. The exercise price of each option shall be
determined by the Board but shall not be less, in the case of an original issue
of authorized stock, than par value.
(b) DURATION OF OPTIONS. Options shall be exercisable during such period
or periods as the Board may specify. The latest date on which an option may be
exercised (the "Final Exercise Date") shall be the date that is ten years from
the date the option was granted or such earlier date as the Board may specify at
the time the option is granted.
(c) EXERCISE OF OPTIONS.
(i) Options shall become exercisable at such time or times and upon
such conditions as the Board shall specify. In the case of an
option not immediately exercisable in full, the Board may at any
time accelerate the time at which all or any part of the option
may be exercised.
(ii) Options may be exercised only in writing. Written notice of
exercise must be signed by the proper person and furnished to the
Company, together with (A) such documents as the Board requires
and (B) payment in full as specified below in Section 6(d) for
the number of shares for which the option is exercised.
-2-
(iii) The delivery of Stock upon the exercise of an option shall be
subject to compliance with (A) applicable federal and state laws
and regulations, (B) if the outstanding Stock is at the time
listed on any stock exchange, the listing requirements of such
exchange, and (C) Company counsel's approval of all other legal
matters in connection with the issuance and delivery of such
Stock. If the sale of Stock has not been registered under the
Securities Act of 1933, as amended, the Company may require, as a
condition to exercise of the option, such representations or
agreements as counsel for the Company may consider appropriate to
avoid violation of such Act and may require that the certificates
evidencing such Stock bear an appropriate legend restricting
transfer.
(iv) The Board shall have the right to require that the participant
exercising the option remit to the Company an amount sufficient
to satisfy any federal, state, or local withholding tax
requirements (or make other arrangements satisfactory to the
Company with regard to such taxes) prior to the delivery of any
Stock pursuant to the exercise of the option. If permitted by
the Board, either at the time of the grant of the option or the
time of exercise, the participant may elect, at such time and in
such manner as the Board may prescribe, to satisfy such
withholding obligation by (A) delivering to the Company Stock
(which in the case of Stock acquired from the Company shall have
been owned by the participant for at least six months prior to
the delivery date) having a fair market value equal to such
withholding obligation, or (B) requesting that the Company
withhold from the shares of Stock to be delivered upon the
exercise a number of shares of Stock having a fair market value
equal to such withholding obligation.
(v) If an option is exercised by the executor or administrator of a
deceased participant, or by the person or persons to whom the
option has been transferred by the participant's will or the
applicable laws of descent and distribution, the Company shall be
under no obligation to deliver Stock pursuant to such exercise
until the Company is satisfied as to the authority of the person
or persons exercising the option.
(d) PAYMENT FOR AND DELIVERY OF STOCK. Stock purchased upon exercise of an
option under the Plan shall be paid for as follows:
(i) in cash or by personal check, certified check, bank draft or money
order payable to the order of the Company; or
(ii) if so permitted by the Board, (A) through the delivery of shares
of Stock (which, in the case of Stock acquired from the Company,
shall have been held for at least six months prior to delivery)
having a fair market value on the last business day preceding the
date of exercise equal to the purchase price or (B) by delivery of
a promissory note of the participant to the Company, such note to
be payable on such terms as are specified by the Board or (C) by
delivery of an unconditional and irrevocable undertaking by a
broker to deliver promptly to the Company sufficient funds to pay
the exercise price or (D) by any combination of the permissible
forms of payment; provided, that if the Stock delivered upon
exercise of the option is an original issue of authorized Stock,
at least so much of the exercise price as represents the par value
of such Stock shall be paid by a personal check or promissory note
of the person exercising the option.
(e) RIGHTS AS SHAREHOLDER. A participant shall not have the rights of a
shareholder with regard to awards under the Plan except as to Stock actually
received by the participant under the Plan.
(f) NONTRANSFERABILITY OF AWARDS; Restrictions on Stock. Except as the
Board may otherwise determine, no award may be transferred other than by will or
by the laws of descent and distribution, and during a participant's lifetime an
award may be exercised only by the participant.
The Board, in its discretion, may at the time an award is granted make
Stock delivered under the award subject to such restrictions and conditions,
including restrictions on resale and buy-back rights, as it deems appropriate.
-3-
(g) DEATH. Except as otherwise provided in the award by the Board at the
time of grant, if a participant dies, each option held by the participant
immediately prior to death may be exercised, to the extent it was exercisable
immediately prior to death, by the participant's executor or administrator or by
the person or persons to whom the option is transferred by will or the
applicable laws of descent and distribution, at any time within the one-year
period (or such longer or shorter period as the Board may determine) beginning
with the date of the participant's death but in no event beyond the Final
Exercise Date.
(h) TERMINATION OF SERVICE OTHER THAN BY DEATH. Except as otherwise
provided in the award by the Board at the time of grant, if an employee's
employment with the Company and its subsidiaries terminates for any reason other
than by death, all options held by the employee that are not then exercisable
shall terminate. Options that are exercisable on the date employment terminates
shall continue to be exercisable for a period of 90 days (or such longer period
as the Board may determine, but in no event beyond the Final Exercise Date)
unless the employee (i) was discharged for cause or (ii) resigned and within 30
days thereafter the Board determines that the participant's conduct prior to his
or her resignation warranted a discharge for cause. After completion of the
post-termination exercise period, such options shall terminate to the extent not
previously exercised, expired or terminated. For purposes of this Section 6(h),
(i) employment shall not be considered terminated (A) in the case of sick leave
or other bona fide leave of absence approved for purposes of the Plan by the
Board, so long as the employee's right to reemployment is guaranteed either by
statute or by contract, or (B) in the case of a transfer of employment between
the Company and a subsidiary or between subsidiaries and (ii) "cause" shall mean
willful misconduct by the participant or willful failure to perform his or her
responsibilities in the best interests of the Company (including, without
limitation, breach by the participant of any provision of any employment,
advisory, consulting, nondisclosure, non-competition or other agreement between
the participant and the Company or any subsidiary of the Company).
In the case of a participant who is not an employee, provisions relating to
the exercisability of options following termination of service shall be
specified in the award. If not so specified, all options held by such
participant that are not then exercisable shall terminate upon termination of
service. Options that are exercisable on the date the participant's service as
a consultant or adviser terminates shall continue to be exercisable for a period
of 30 days (or such longer period as the Board may determine, but in no event
beyond the Final Exercise Date) unless the consultant or adviser (i) was
terminated for cause or (ii) resigned and within 30 days thereafter the Board
determines that the participant's conduct prior to his or her resignation
warranted a discharge for cause. After completion of the post-termination
exercise period, such options shall terminate to the extent not previously
exercised, expired or terminated.
(i) MERGER, CONSOLIDATION, ASSET SALE, LIQUIDATION, ETC. In the event of a
consolidation or merger or sale of all or substantially all of the assets of the
Company in which outstanding shares of Stock are exchanged for securities, cash
or other property of any other corporation or business entity or in the event of
a liquidation of the Company, the Board, or the board of directors of any
corporation assuming the obligations of the Company, may, in its discretion,
take any one or more of the following actions, as to outstanding options: (i)
provide that such options shall be assumed, or equivalent options shall be
substituted, by the acquiring or succeeding corporation (or an affiliate
thereof), (ii) upon written notice to the optionees, provide that all
unexercised options will terminate immediately prior to the consummation of such
transaction unless exercised by the optionee within a specified period following
the date of such notice, (iii) in the event of a merger under the terms of which
holders of the Stock will receive upon consummation thereof a cash payment for
each share surrendered in the merger (the "Merger Price"), make or provide for a
cash payment to the optionees equal to the difference between (A) the Merger
Price times the number of shares of Stock subject to such outstanding options
(to the extent then exercisable at prices not in excess of the Merger Price) and
(B) the aggregate exercise price of all such outstanding options in exchange for
the termination of such options, and (iv) provide that all or any outstanding
options shall become exercisable in full and all restrictions on outstanding
awards shall terminate immediately prior to such event.
The Company may grant options under the Plan in substitution for options
held by employees of another corporation who become employees of the Company, or
a subsidiary of the Company, as the result of a merger or consolidation of the
employing corporation with the Company or a subsidiary of the Company, or as a
result of the acquisition by the Company, or one of its subsidiaries, of
property or stock of the employing corporation. The Company may direct that
substitute options be granted on such terms and conditions as the Board
considers appropriate in the circumstances.
-4-
(j) CHANGE IN CONTROL. Notwithstanding any other provision of the Plan and
except as otherwise provided in the relevant option agreement, in the event of a
"Change in Control of the Company" (as defined below), the exercise dates of all
options then outstanding shall be accelerated in full, and any restrictions on
exercising outstanding options issued pursuant to the Plan prior to any given
date shall terminate. For purposes of the Plan, a "Change in Control of the
Company" shall occur or be deemed to have occurred only if (i) any "person", as
such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of
1934, as amended ("Exchange Act"), (other than the Company, any trustee or other
fiduciary holding securities under an employee benefit plan of the Company, or
any corporation owned directly or indirectly by the shareholder of the Company
in substantially the same proportion as their ownership of stock of the
Company), is or becomes the "beneficial owner" (as defined in Rule 13d-3 under
the Exchange Act), directly or indirectly, of securities of the Company
representing 50% or more of the combined voting power of the Company's then
outstanding securities; (ii) during any period of two consecutive years ending
during the term of the Plan (not including any period prior to the adoption of
the Plan), individuals who at the beginning of such period constitute the Board,
and any new director (other than a director designated by a person who has
entered into an agreement with the Company to effect any transaction described
in clause (i), (iii) or (iv) of this subsection (j)) whose election by the Board
or nomination for election by the Company's shareholders was approved by a vote
of at least two-thirds of the directors then still in office who were either
directors at the beginning of the period or whose election or whose nomination
for election was previously so approved (collectively, the "Disinterested
Directors"), cease for any reason to constitute a majority of the Board; (iii)
the shareholders of the Company approve a merger or consolidation of the Company
with any other corporation, other than (A) a merger or consolidation which would
result in the voting securities of the Company outstanding immediately prior
thereto continuing to represent (either by remaining outstanding or by being
converted into voting securities of the surviving entity) more than 50% of the
combined voting power of the voting securities of the Company or such surviving
entity outstanding immediately after such merger or consolidation or (B) a
merger or consolidation effected to implement a recapitalization of the Company
(or similar transaction) in which no "person" (as hereinabove defined) acquires
more than 50% of the combined voting power of the Company's then outstanding
securities; or (iv) the shareholders of the Company approve a plan of complete
liquidation of the Company or an agreement for the sale or disposition by the
Company of all or substantially all of the Company's assets which, in either
case, has not previously been approved by a majority of the Disinterested
Directors.
7. EMPLOYMENT RIGHTS
Neither the adoption of the Plan nor the grant of awards shall confer upon
any participant any right to continue as an employee of, or consultant or
adviser to, the Company or any subsidiary of the Company or affect in any way
the right of the Company or any such subsidiary to terminate his or her
employment by the Company or any subsidiary of the Company at any time. Except
as specifically provided by the Board in any particular case, the loss of
existing or potential profit in awards granted under this Plan shall not
constitute an element of damages in the event of termination of the relationship
of a participant even if the termination is in violation of an obligation of the
Company or any subsidiary of the Company to the participant by contract or
otherwise.
8. EFFECT, DISCONTINUANCE, CANCELLATION, AMENDMENT AND TERMINATION
Neither adoption of the Plan nor the grant of awards to a participant shall
affect the Company's right to make awards to such participant that are not
subject to the Plan, to issue to such participant Stock as a bonus or otherwise,
or to adopt other plans or arrangements under which Stock may be issued.
The Board may at any time discontinue granting awards under the Plan. With
the consent of the participant (except as otherwise provided in the Plan), the
Board may at any time cancel an existing award in whole or in part and grant
another award for such number of shares as the Board specifies. The Board may
at any time or times amend the Plan or any outstanding award for the purpose of
satisfying changes in applicable laws or regulations or for any other purpose
that may at the time be permitted by law, or may at any time terminate the Plan
as to further grants of awards, but no such amendment shall adversely affect the
rights of any participant (without the participant's consent) under any award
previously granted.
-5-
EXHIBIT 4.2
NABI
NON-QUALIFIED STOCK OPTION
For good and valuable consideration, receipt of which is hereby
acknowledged, Nabi, a Delaware corporation (the "Company"), does hereby grant to
_______________ (the "Grantee") an option to purchase two thousand five hundred
(2,500) shares of Common Stock of the Company (the "Option"). The Option is not
granted pursuant to the Company's Stock Plan for Non-Employee Directors (the
"Plan"). This Agreement shall nevertheless be subject to the terms of the Plan,
a copy of which is attached hereto as Exhibit A and is incorporated herein in
its entirety by this reference, except to the extent this Agreement and the Plan
are in conflict, in which case this Agreement shall control. Capitalized terms
used herein and not otherwise defined shall have the meanings ascribed to them
in the Plan.
The Grantee hereby accepts the Option subject to all of the provisions of
the Plan, and upon the following additional terms and conditions:
1. The price at which the shares of Common Stock may be purchased pursuant
to the Option is three dollars and sixty-three cents ($3.63) per share, subject
to adjustment as provided in the Plan.
2. The Option shall expire at the close of business on the fifth
anniversary of the date hereof. Subject to the provisions of the Plan, the
Option shall be exercisable before said date to the full extent of all shares
covered hereby six months from the date hereof. The Option may not be exercised
at all during the first six months after the date hereof (except to the extent
provided in the Plan) or after the fifth anniversary of the date hereof.
3. The Option shall not be transferable other than by will or by the laws
of descent and distribution and shall be exercisable during the Grantee's
lifetime only by the Grantee.
4. This Option may be exercised by the giving of written notice, in person
or by mail, to the Company, marked "Attention: Chief Financial Officer," at its
principal place of business, of the election to purchase shares pursuant hereto
accompanied by the full payment for all shares being so purchased.
WITNESS the execution hereof as of this 29th day of May 1998.
NABI
By__________________________________
David J. Gury
President
The foregoing Option is hereby accepted on the terms and conditions set
forth herein and, as described above, is expressly subject to all the provisions
set forth in the Nabi Stock Plan for Non-Employee Directors, a copy of which is
annexed hereto as Exhibit A.
----------------------------------------------
----------------------------
Grantee
[Exhibit A containing the Nabi Stock Plan for Non-Employee Directors
is incorporated herein by reference to the form of Plan included with the
definitive proxy materials filed with the Securities and Exchange Commission
on April 26, 1995, in connection with Nabi's 1995 annual meeting of
stockholders.]
-2-
EXHIBIT 5
NUTTER, McCLENNEN & FISH, LLP
ATTORNEYS AT LAW
ONE INTERNATIONAL PLACE
BOSTON, MASSACHUSETTS 02110-2699
TELEPHONE: 617-439-2000 FACSIMILE: 617-973-9748
CAPE COD OFFICE DIRECT DIAL NUMBER
HYANNIS, MASSACHUSETTS
June 4, 1998
Nabi
5800 Park of Commerce Boulevard, N.W.
Boca Raton, Florida 33487
Gentlemen/Ladies:
Reference is made to the registration statement on Form S-8 (the
"Registration Statement") which Nabi (the "Company") is filing concurrently
herewith with the Securities and Exchange Commission under the Securities Act of
1933, as amended, (the "Securities Act"), with respect to (i) 2,000,000 shares
of the Company's common stock, $0.10 par value per share (the "Common Stock"),
issuable pursuant to the Company's 1998 Non-Qualified Employee Stock Option Plan
(the "Plan"), (ii) 17,500 shares of Common Stock which may be issued pursuant to
options granted to Nabi's non-employee directors and are evidenced by written
agreements (the "Option Agreements") with such directors, and (iii) an
indeterminate number of shares of such Common Stock which may be issued or
become issuable under the Plan or the Option Agreements by reason of stock
dividends, stock splits or other recapitalizations executed hereafter.
We have acted as legal counsel for the Company in connection with the
adoption of the Plan and the approval of the Option Agreements, are familiar
with the Company's Amended and Restated Certificate of Incorporation and By-
laws, both as amended to date (collectively, the "Organizational Documents"),
and have examined such other documents as we deemed necessary for this opinion.
Based upon the foregoing, we are of the opinion that:
1. When issued and paid for in compliance with the terms of the Plan or
the Option Agreements (as the case may be), the Organizational Documents and the
Delaware General Corporation Law, the 2,017,500 shares of Common Stock referred
to above will be duly and validly issued, fully paid and non-assessable; and
2. The additional shares of Common Stock which may become issuable under
the Plan or the Option Agreements (as the case may be) by reason of stock
dividends, stock splits or other recapitalizations hereafter executed, if and
when issued in accordance with the terms of the Plan or the Option Agreements
(as the case may be) and upon compliance with the applicable provisions of law
and of the Company's Restated Certificate of Incorporation and By-Laws, both as
amended to date, will be duly and validly issued, fully paid and non-assessable.
We understand that this opinion letter is to be used in connection with
the Registration Statement and hereby consent to the filing of this opinion
letter with and as a part of the Registration Statement and of any amendments
thereto. It is understood that this opinion letter is to be used in connection
with the offer and sale of the aforesaid shares only while the Registration
Statement, as it may be amended from time to time as contemplated by Section
10(a)(3) of the Securities Act, is effective under the Securities Act.
Very truly yours,
/s/ Nutter, McClennen & Fish, LLP
NUTTER, McCLENNEN & FISH, LLP
CA/DSS/ADA
EXHIBIT 23.2
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of Nabi of our report dated March 30, 1998 appearing on
page 34 of Nabi's Annual Report on Form 10-K for the year ended December 31,
1997.
/s/ Price Waterhouse LLP
Price Waterhouse LLP
Miami, Florida
May 28, 1998
