As filed with the Securities and Exchange Commission on May 20, 2004.
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Nabi Biopharmaceuticals
(Exact Name of Registrant as Specified in its Charter)
| Delaware | 59-1212264 |
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|
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| (State or Other Jurisdiction of | (I.R.S. Employer |
| Incorporation or Organization) | Identification No.) |
5800 Park of Commerce Boulevard, N.W.
Boca Raton, FL 33487
(Address of Principal Executive Offices, Including Zip Code)
Nabi 2000 Equity Incentive Plan
(Full Title of the Plan)
| Thomas H. McLain | Copies to: |
| Nabi Biopharmaceuticals | James E. Dawson, Esq. |
| 5800 Park of Commerce Boulevard, N.W. | Kevin T. Sheehan, Esq. |
| Boca Raton, FL 33487 | Nutter, McClennen & Fish, LLP |
| (561) 989-5800 | 155 Seaport Boulevard |
| (Name, Address, and Telephone Number, | Boston, MA 02210-2604 |
| Including Area Code, of Agent for Service) | (617) 439-2000 |
CALCULATION OF REGISTRATION FEE
| Title of Each Class of Securities to be Registered |
Amount to be Registered |
Proposed Maximum Offering Price per Share |
Proposed Maximum Aggregate Offering Price |
Amount of Registration Fee | |||
| |
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| Common Stock, par value $.10 per share (1) | 4,500,000 shares (2) | $16.095(3) | $72,427,500(3) | $9,176.56 | |||
| |
| (1) |
This registration statement also relates to rights to purchase shares of Series One Preferred
Stock. The rights are attached to the Common Stock and are issued pursuant to the terms of the registrant’s Rights Agreement
dated August 1, 1997, as amended. Until the occurrence of certain events, the rights will not be exercisable and will be transferable
with and only with the Common Stock. Because no separate consideration is to be paid for the rights, the registration fee for the
rights is included in the registration fee for the Common Stock. |
| (2) |
This registration statement covers up to 4,500,000 shares of Common Stock that may be issued
under the registrant’s 2000 Equity Incentive 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. |
| (3) |
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 May 17, 2004. |
REGISTRATION OF ADDITIONAL SECURITIES
On February 12, 2004, the board of directors of Nabi Biopharmaceuticals, a Delaware corporation (the “Company”), amended the Company’s 2000 Equity Incentive 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”), that may be issued under the Plan from 1,196,922 to 6,196,922. On May 14, 2004, the stockholders of the Company approved the amendment. The Company is filing this registration statement to register the issuance of up to 4,500,000 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.
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 May 20, 2004.
| NABI BIOPHARMACEUTICALS | ||
| By: | /s/ Thomas H. McLain | |
| Thomas H. McLain Chief Executive Officer, President, and Chairman of the Board |
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Thomas H. McLain, Mark L. Smith, 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, and each of them, 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 | Chief Executive Officer, President, and | May 20, 2004 | |
| |
Chairman of the Board (principal executive officer) | ||
| Thomas H. McLain | |||
| /s/ Mark L. Smith | Senior Vice President, Finance, Chief | May 20, 2004 | |
| |
Financial Officer, Chief Accounting | ||
| Mark L. Smith | Officer, and Treasurer (principal | ||
| financial and accounting officer) | |||
| /s/ David L. Castaldi | Director | May 20, 2004 | |
| |
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| David L. Castaldi | |||
| /s/ Geoffrey F. Cox, Ph.D. | Director | May 20, 2004 | |
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| Geoffrey F. Cox, Ph.D. | |||
| /s/ George W. Ebright | Director | May 20, 2004 | |
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| George W. Ebright | |||
| /s/ Richard A. Harvey, Jr. | Director | May 20, 2004 | |
| Richard A. Harvey, Jr. | |||
| /s/ Linda Jenckes | Director | May 20, 2004 | |
| Linda Jenckes | |||
| /s/ Stephen G. Sudovar | Director | May 20, 2004 | |
| Stephen G. Sudovar |
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EXHIBIT INDEX
| Exhibit No. | Description | |
| 4.1 | Form of 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). | ||
| 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). | ||
| 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). | ||
| 5 | Opinion of Nutter, McClennen & Fish, LLP. | |
| 23.1 | Consent of Nutter, McClennen & Fish, LLP (contained in Exhibit 5). | |
| 23.2 | Consent of Ernst & Young LLP, independent certified public accountants. | |
| 24 | Power of Attorney (included on signature page). | |
| 99 | Nabi 2000 Equity Incentive Plan, as amended (incorporated by reference to the | |
| Company’s Definitive Proxy Statement filed under cover of Schedule 14A on April 9, 2004). |
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Exhibit 5
Nutter McClennen & Fish LLP
World Trade Center West
155 Seaport Boulevard
Boston, MA 02210-2604
May 20, 2004
12771-40
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 4,500,000 shares (the “Shares”) of the Company’s common stock, par value $0.10 per share, that may be issued under the Company’s 2000 Equity Incentive 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 |
Exhibit 23.2
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the Nabi 2000 Equity Incentive Plan of Nabi Biopharmaceuticals of our report dated February 10, 2004, 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 27, 2003, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
West Palm Beach, Florida
May 20, 2004