As filed with the Securities and Exchange Commission on September 22, 2003.
Registration No. 333-_____
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Nabi Biopharmaceuticals
| Delaware (State or Other Jurisdiction of Incorporation or Organization) |
59-1212264 (I.R.S. Employer Identification No.) |
5800 Park of Commerce Boulevard, N.W.
Boca Raton, FL 33487
(Address of Principal Executive Offices, Including Zip Code)
Nabi 2000 Employee Stock Purchase Plan
(Full Title of the Plan)
| Thomas H. McLain | Copies to: | |
| Nabi Biopharmaceuticals 5800 Park of Commerce Boulevard, N.W. Boca Raton, FL 33487 (561) 989-5800 (Name, Address, and Telephone Number, Including Area Code, of Agent for Service) |
James E. Dawson, Esq. Kevin T. Sheehan, Esq. Nutter, McClennen & Fish, LLP 155 Seaport Boulevard Boston, MA 02210-2604 (617) 439-2000 |
CALCULATION OF REGISTRATION FEE
| Title of Each Class of | Proposed Maximum | Proposed Maximum | ||||||||||||||
| Securities to be | Amount to be | Offering Price per | Aggregate Offering | Amount of | ||||||||||||
| Registered | Registered (1) | Share | Price | Registration Fee | ||||||||||||
Common Stock,
par value $.10 per share |
500,000 shares | $ | 8.775 | (2) | $ | 4,387,500 | (2) | $ | 354.95 | |||||||
| (1) | This registration statement covers up to 500,000 shares of Common Stock that may be issued under the Nabi 2000 Employee Stock Purchase Plan. This registration statement also covers an indeterminate number of shares that may become issuable under the Plan as a result of a stock dividend, stock split, or other recapitalization. | |
| (2) | Estimated solely for the purpose of calculating the registration fee pursuant to Rules 457(c) and (h) under the Securities Act of 1933, as amended, based on the average of the high and low sale prices per share of the Common Stock as reported on the Nasdaq National Market on September 15, 2003. |
REGISTRATION OF ADDITIONAL SECURITIES
On February 13, 2003, the board of directors of Nabi Biopharmaceuticals, a Delaware corporation (the “Company”), amended the Company’s 2000 Employee Stock Purchase Plan (the “Plan”), subject to the approval of the stockholders of the Company, to increase the number of shares of the Company’s common stock, par value $.10 per share (the “Common Stock”), available for purchase under the Plan from 500,000 to 1,000,000. On May 16, 2003, the stockholders of the Company approved the amendment. The Company is filing this registration statement to register the issuance of up to 500,000 additional shares of Common Stock that may be issued under the Plan as a result of the amendment. Pursuant to General Instruction E to Form S-8, the contents of the Company’s Registration Statement on Form S-8 filed with the Securities and Exchange Commission on June 8, 2000 (File No. 333-38864) are incorporated by reference into this registration statement.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, 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 September 22, 2003.
| NABI BIOPHARMACEUTICALS | ||
|
By: /s/ Thomas H. McLain
Thomas H. McLain Chief Executive Officer and President |
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Thomas H. McLain, Constantine Alexander, and James E. Dawson, and each of them, with full power to act without the others, as his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for the undersigned and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement and to file the same, with all exhibits thereto and all documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, full power and authority to do and perform each and every act and thing necessary or advisable to be done in connection therewith, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
| Signature | Title | Date | ||
|
|
||||
| /s/ Thomas H. McLain
Thomas H. McLain |
Chief Executive Officer,President, and Director |
September 22, 2003 | ||
| /s/ Mark L. Smith
Mark L. Smith |
Senior Vice President, Finance, Chief Financial Officer, Chief Accounting Officer, and Treasurer |
September 22, 2003 | ||
| /s/ David J. Gury
David J. Gury |
Chairman of the Board | September 22, 2003 | ||
| /s/ David L. Castaldi
David L. Castaldi |
Director | September 22, 2003 | ||
| /s/ Geoffrey F. Cox, Ph.D.
Geoffrey F. Cox, Ph.D. |
Director | September 22, 2003 |
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| /s/ George W. Ebright
George W. Ebright |
Director | September 22, 2003 | ||
| /s/ Richard A. Harvey, Jr.
Richard A. Harvey, Jr. |
Director | September 22, 2003 | ||
| /s/ Linda Jenckes
Linda Jenckes |
Director | September 22, 2003 | ||
| /s/ Stephen G. Sudovar
Stephen G. Sudovar |
Director | September 22, 2003 |
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EXHIBIT INDEX
| Exhibit No. | Document | |
|
|
||
| Exhibit 4.1 | Common Stock Certificate (incorporated by reference to Exhibit 4.4 to the Company’s Current Report on Form 8-K filed on August 21, 1997). | |
| Exhibit 4.2 | Rights Agreement dated August 1, 1997, between the Company and Registrar and Transfer Company, as amended (incorporated by reference to Exhibit 10.28 to the Company’s Annual Report on Form 10-K for the year ended December 31, 1997). | |
| Exhibit 4.3 | Agreement of Substitution and Amendment of Rights Agreement dated July 1, 2002, among the Company, Registrar and Transfer Company, and American Stock Transfer & Trust Company (incorporated by reference to Exhibit 4.4 to the Company’s Annual Report on Form 10-K for the year ended December 28, 2002). | |
| Exhibit 5 | Opinion of Nutter, McClennen & Fish, LLP. | |
| Exhibit 23.1 | Consent of Nutter, McClennen & Fish, LLP (contained in Exhibit 5). | |
| Exhibit 23.2 | Consent of Ernst & Young LLP, independent certified public accountants. | |
| Exhibit 24 | Power of Attorney (included on signature page). | |
| Exhibit 99 | Nabi 2000 Employee Stock Purchase Plan, as amended. |
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Exhibit 5
Nutter, McClennen & Fish, LLP
Attorneys at Law
World Trade Center West
155 Seaport Boulevard
Boston, MA 02210-2604
September 22, 2003
12771-41
Nabi Biopharmaceuticals
5800 Park of Commerce Boulevard, N.W.
Boca Raton, FL 33487
Ladies and Gentlemen:
We have acted as counsel to Nabi Biopharmaceuticals, a Delaware corporation (the “Company”), in connection with the preparation and filing of a Registration Statement on Form S-8 (the “Registration Statement”) under the Securities Act of 1933, as amended (the “Securities Act”), relating to up to 500,000 shares (the “Shares”) of the Company’s common stock, par value $0.10 per share, that may be issued under the Company’s 2000 Employee Stock Purchase Plan (the “Plan”).
We have examined such documents and made such other investigation as we have deemed appropriate to render the opinion set forth below. As to matters of fact material to our opinion, we have relied, without independent verification, on certificates and other inquiries of officers of the Company. We have also relied on certificates of public officials.
The opinion expressed below is limited to the Delaware General Corporation Law, the applicable provisions of the Delaware Constitution, and reported judicial decisions interpreting these laws.
Based upon the foregoing, we are of the opinion that the Shares have been duly authorized and, when issued, delivered, and paid for in accordance with the Plan, will be validly issued, fully paid, and nonassessable.
This opinion letter shall be interpreted in accordance with the Legal Opinion Principles issued by the Committee on Legal Opinions of the American Bar Association’s Business Law Section as published in 53 Bus. Law. 831 (May 1998).
We hereby consent to the filing of this opinion letter as an exhibit to the Registration Statement. In giving such consent, we do not thereby admit that we are within the category of persons whose consent is required by Section 7 of the Securities Act.
| Very truly yours, | ||
|
/s/ Nutter, McClennen & Fish, LLP Nutter, McClennen & Fish, LLP |
CA/JED/KTS
Exhibit 23.2
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We consent to the incorporation by reference in the Registration Statement (Form S-8) of Nabi Biopharmaceuticals pertaining to the Nabi 2000 Employee Stock Purchase Plan of our report dated February 4, 2003, with respect to the consolidated financial statements and schedule of Nabi Biopharmaceuticals included in its Annual Report (Form 10-K) for the year ended December 28, 2002, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Fort Lauderdale, Florida
September 18, 2003
Exhibit 99
NABI
EMPLOYEE STOCK PURCHASE PLAN
(as adopted by the shareholders of Nabi on May 26, 2000 and subsequently
amended effective May 31, 2000, June 1, 2001, and May 16, 2003)
1. Purpose
The Nabi Employee Stock Purchase Plan (the “Plan”) is intended to provide employees of Nabi (the “Company”) an opportunity to acquire a proprietary interest in the Company through the purchase of shares of the common stock of the Company (“Common Stock” or “Stock”). It is the intention of the Company to have the Plan qualify as an employee stock purchase plan under Section 423 of the Internal Revenue Code of 1986, as amended (the “Code”). The provisions of the Plan shall be construed so as to extend and limit participation in a manner consistent with the requirements of such section of the Code.
2. Eligibility
Any employee of the Company is eligible to participate in the Plan provided he or she (i) is employed by the Company on the Offering Commencement Date (as defined in Section 3 of this Plan) or, if such date is not a regular business day for the Company, the first regular business day of the Company after the Offering Commencement Date, and (ii) is employed by the Company as of the date(s) each payroll deduction made in accordance with Section 4 of this Plan is made.
Notwithstanding the foregoing, no employee will be eligible to participate in the Plan if (i) immediately after the grant of an option, the employee would own stock or hold outstanding options to purchase stock possessing five (5) percent or more of the total combined voting power or value of all classes of stock of the Company, or (ii) the grant of the option would permit the participant’s rights to purchase stock under all employee stock purchase plans of the Company to accrue at a rate which exceeds $25,000 of the fair market value of the stock (determined at the time the option is granted) for each calendar year in which such option is outstanding at any time.
For purposes of this Section 2, the rules of Section 424(d) of the Code shall apply in determining stock ownership of an employee, and stock which an employee may purchase under outstanding options shall be treated as stock owned by the employee.
3. Offering Periods
Under the Plan, there will be two six-month offering periods per year, provided however that the initial offering period shall be five months in duration. The initial offering of Common Stock under the Plan shall begin on July 1, 2000 (and such date shall be deemed to be the Offering Commencement Date for such initial offering) and will end on November 30, 2000 (and such date shall be deemed to be the Offering Termination Date for such initial offering). Each subsequent offering of Common Stock (an “Offering”) will begin on June 1 and December 1 of a calendar year (each an “Offering Commencement Date”), and will end on each of November 30 and May 31, respectively (each an “Offering Termination Date”). The first such six-month Offering shall begin on December 1, 2000.
4. Participation
(a) An eligible employee may elect to participate in any Offering by having payroll deductions made in accordance with Section 4(b) hereof over the six-month period commencing on the Offering Commencement Date (a “Plan Period”). An eligible employee whose employment with the Company commences after the Offering Commencement Date in any Plan Period may elect to participate in the next following Plan Period, but shall not be entitled to participate in the Offering that is in progress on the date his or her employment with the Company begins.
(b) An eligible employee may participate in any Offering by completing an authorization form for payroll deductions and filing it with the Company no later than a date prior to the Offering Commencement Date for the Offering designated by the Administrator (as defined in Section 10) or, in the absence of such a designation, the date five business days before the Offering Commencement Date. Payroll deductions will be spread evenly over the Plan Period or such shorter period during which an eligible employee may participate in the Plan, as provided in this Section 4. An eligible employee electing to participate in the Plan by means of payroll deductions for a particular Plan Period may not alter the rate of payroll deductions more than one time during the period. All such payroll deductions shall be credited to the participant’s account under the Plan. Employees on leave of absence for a period not exceeding 90 days will be permitted to continue participating in the Offering, if they continue making periodic payments to the Company. Each authorization form filed by an eligible employee is of a continuing nature and shall apply to all subsequent Offerings for which the employee is eligible unless and until revoked or replaced by the employee.
(c) In no event shall the aggregate of all payroll deductions made with respect to a single Plan Period for an eligible employee be less than five dollars ($5) nor more than ten percent (10%) of the employee’s base pay earned during the Plan Period. For purposes of the Plan, “base pay” means regular salary or straight time earnings, excluding commissions, overtime payments, bonuses, nonrecurring payments, and incentive or contingent payments.
5. Option Grant and Price
(a) A participant’s authorization for payroll deductions for any Offering shall become effective as of the Offering Commencement Date or, if applicable, the date upon which he or she elects to participate as permitted in Section 4, and the participant shall be deemed to have been granted an option as of the applicable date to purchase as many shares (including fractional shares) of Common Stock as can be purchased with the payroll deductions credited to his or her account during the Offering.
(b) The option price of Common Stock for any Offering will be equal to the lower of 85 percent of the last sale price of the Stock on the Nasdaq National Market on (i) the day immediately prior to the Offering Commencement Date or (ii) the day immediately prior to the Offering Termination Date for the Offering or, in either case, if no trading occurred in the Stock on the Nasdaq National Market on such date, then the next prior business day on which trading occurred in the Stock on the Nasdaq National Market.
6. Withdrawal
(a) A participant may withdraw payroll deductions credited to his or her account for any Offering by giving written notice to the Company at any time up to a date prior to the Offering Termination Date designated by the Administrator (as defined in Section 10). Upon notice of withdrawal, all of the participant’s payroll deductions for the offering will be paid promptly without interest, and no further payroll deductions will be made. A participant who withdraws from an Offering cannot participate again in that Offering, but can participate in any other Offering for which he or she is eligible.
(b) Upon termination of a participant’s employment for any reason other than death, the payroll deductions credited to the participant’s account will be returned to the participant without interest. If the participant dies after termination of employment, such amount shall be returned to the person or persons entitled thereto under Section 11; provided however, that the foregoing shall not require the return of payroll deductions to a participant whose employment is terminated effective September 6, 2001 in connection with the sale of certain assets to CSL Limited and who commences employment with CSL Limited as of September 6, 2001.
(c) Upon termination of a participant’s employment because of death, the participant’s beneficiary will have the right to elect, by written notice given to the Company within the 30-day period commencing with the date of the death of the participant, either (i) to withdraw all of the payroll deductions credited to the participant’s account under the Plan, or (ii) to exercise the participant’s option on the Offering Termination Date for the purchase of the number of shares (including fractional shares) of Common Stock which the accumulated payroll deductions in his or her account will purchase at the applicable option price. In the event that no written notice of election is received by the Company, the beneficiary will be deemed to have elected to
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withdraw the accumulated payroll deductions credited to the participant’s account at the date of the participant’s death and such amount will be paid promptly to the beneficiary without interest.
(d) Notwithstanding any other provision of the Plan to the contrary, each participant with a positive account balance as of September 6, 2001, whose employment with the Company is terminated effective September 6, 2001 in connection with the sale of certain assets to CSL Limited, who commences employment with CSL Limited as of September 6, 2001 and who does not withdraw the payroll contributions credited to his or her account, shall not cease to participate in the Plan by reason of his or her employment termination.
7. Exercise of Option
Unless a participant gives written notice to the Company as provided in Section 6(a), an option for the purchase of Common Stock with payroll deductions for any Offering will be deemed to have been exercised automatically on the Offering Termination Date for the Offering for the number of shares (including fractional shares) of Common Stock which the accumulated payroll deductions in the participant’s account on that date will purchase at the applicable option price.
8. Delivery
As promptly as practicable after the Offering Termination Date for any Offering, the Company will deliver to each participant, as appropriate, the Common Stock purchased upon the exercise of his or her option.
9. Stock
(a) The maximum number of shares of Common Stock which may be made available for purchase under the Plan shall be 1,000,000 shares, subject to adjustment upon changes in the capitalization of the Company. Shares shall be made available from authorized, unissued and reserved Common Stock of the Company. If the total number of shares for which options are exercised for any Offering exceeds the number of shares available, the Company will make a pro rata allocation of the shares available in as nearly uniform a manner as practicable and as the Company may determine to be equitable, and the balance of payroll deductions credited to the account of each participant under the Plan shall be returned as promptly as possible, without interest.
(b) The participant will have no interest in Stock covered by an option until such option has been exercised.
(c) Stock to be delivered to a participant with respect to any Offering under the Plan will be registered in the name of the participant or, if the participant so directs by written notice to the Company before the Offering Termination Date, in the names of the participant and such other person as may be designated by the participant, as joint tenants with rights of survivorship, to the extent permitted by applicable law.
(d) The Board of Directors may, in its discretion, require as conditions to the exercise of any option, that either (i) a registration statement under the Securities Act of 1933, as amended, with respect to shares covered by the option shall be effective, or (ii) the participant shall represent, in such form and manner as the Company may determine, that it is the participant’s intention to purchase the shares only for investment. The participant shall deliver to the Company such certificates and other documents as may be requested by the Company in order to evidence compliance with applicable state and federal securities regulations.
10. Administration
The Plan initially shall be administered by the Company’s President or the President’s designee (the “Administrator”). The interpretation and construction of any provision of the Plan and the adoption of rules and regulations for administering the Plan shall be made by the Administrator, subject, however, to the final determination of the Board of Directors of the Company. Determinations made by the Administrator and approved by the Board of Directors with respect to any matter or provision contained in the Plan shall be final, conclusive and
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binding upon the Company and upon all participants, their legal representatives and any other persons under the Plan. Any rule or regulation adopted by the Administrator shall remain in full force and effect unless and until altered, amended or repealed by the Board of Directors.
11. Designation of Beneficiary
A participant may file a written designation of a beneficiary to receive any Stock or cash in the event of the participant’s death. Any designation of a beneficiary may be changed by the participant at any time by written notice to the Administrator. Upon the death of a participant and upon receipt by the Administrator of proof of the identity and existence at the time of the participant’s death of a beneficiary validly designated under the Plan, the Company will deliver such Stock or cash to the participant’s beneficiary. In the event that no beneficiary survives the participant, the Company will deliver such Stock or cash to the executor or administrator of the participant’s estate. If no executor or administrator has been appointed to the knowledge of the Administrator, the Company, in its discretion, may deliver such Stock or cash to the spouse or to any one or more dependents of the participant as the Administrator may designate. No beneficiary shall, prior to the death of the participant, acquire any interest in any Stock or cash credited to the participant under the Plan.
12. Transferability
Neither contributions credited to a participant’s account nor any rights with regard to the exercise of an option or the receipt of Stock under the Plan may be assigned, transferred, pledged or otherwise disposed of in any way by a participant. Any such assignment, transfer, pledge or other disposition shall be without effect, except that the Company may treat such an act as an election to withdraw funds in accordance with Section 6.
13. Use of Funds
All payroll deductions received or held by the Company under the Plan will be general assets of the Company and may be used for any corporate purpose. The Company shall not be obligated to segregate such payroll deductions.
14. Effect of Changes in Common Stock
If the Company subdivides or reclassifies Common Stock which has been or may be optioned under the Plan, or declares any dividend payable in shares of Common Stock, or takes any other action of a similar nature affecting such Stock, then the number and class of shares of Common Stock which may thereafter be optioned (in the aggregate and with respect to any individual participant) will be adjusted accordingly and, in the case of each option outstanding at the time of any such action, the number and class of shares which may thereafter be purchased pursuant to the option and the option price per share shall be adjusted to the extent determined by the Board of Directors, upon the recommendation of the Administrator, to be necessary to preserve unimpaired and undiluted the rights of the holder of such option.
15. Amendment
(a) By the Board. The Board of Directors of the Company may at any time amend the Plan; provided, however, that the Board may not make any change in any option previously granted which would adversely affect the rights of any participant.
(b) By the Chief Executive Officer. The Chief Executive Officer of the Company may at any time amend the Plan; provided however, that said officer may not make any change in any option previously granted which would adversely affect the rights of any participant, and provided further that said officer may not by any such amendment impose a material cost upon the Company without the prior written approval of the Board of Directors of the Company.
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(c) Shareholder Approval Required for Certain Amendments. No amendment may be made without prior approval of the holders of a majority of the shares of Common Stock of the Company issued, outstanding and entitled to vote if such amendment would:
(i) require the sale of more shares of Stock than are authorized under Section 9 of the Plan; or
(ii) permit payroll deductions at a rate in excess of 10 percent of a participant’s base pay.
16. Discontinuance or Termination
The Plan shall terminate on the Offering Termination Date on which the number of shares for which options are exercised exceeds the number of shares available for the Offering. The Board of Directors may at any other time terminate the Plan. No discontinuance or termination may affect options previously granted except as provided herein.
17. Notices
All notices or other communications by a participant to the Company under the Plan shall be deemed to have been duly given when received by the Company.
18. Merger or Consolidation
In the event of a merger or consolidation to which the Company is a party (other than a merger or consolidation in which shareholders of the Company immediately prior to the merger or consolidation shall immediately following the merger or consolidation own securities in the resulting corporation having the right to cast more than 50% of the votes necessary to elect a majority of the Directors of the resulting corporation), or in the event of a sale or transfer of all or substantially all of the Company’s assets, the Plan shall terminate and the date of such merger, consolidation, sale or transfer shall be the Offering Termination Date for the Plan Period within which such event occurs. To the extent of payroll deductions credited to each participant’s account on the Offering Termination Date, the holder of each option then outstanding shall be deemed to have exercised the option and shall be entitled to receive, as nearly as reasonably may be determined, the securities or property to which a holder of Common Stock was entitled immediately prior to the merger, consolidation, sale or transfer. The Board of Directors shall take such steps in connection with any merger, consolidation, sale or transfer as it may deem necessary to insure that the provisions of Section 14 will thereafter be applicable, as nearly as reasonably possible, to such securities or property.
19. Approval of Stockholders
The Plan shall be effective when approved by the holders of a majority of the shares of Common Stock of the Company present and entitled to vote either at the next annual meeting of stockholders, a special meeting in lieu of the annual meeting, or a special meeting of holders of Common Stock called, at least in part, to act upon the Plan, provided, that a quorum representing a majority of all outstanding voting stock of the Company is, either in person or by proxy, present and voting on the Plan.
20. Participant and Employee Rights
The Plan shall not be deemed to give any participant or any employee the right to be retained in the employ of the Company, or to confer on or create in any participant or any employee any rights, legal or equitable, except such as are expressly set forth herein.
21. Governing Law
The Plan shall be construed, and the rights and liabilities of all persons under the Plan shall be determined, in accordance with the laws of the State of Delaware, to the extent not superseded by federal law.
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