As filed with the Securities and Exchange Commission on July 25, 2000.
Registration No. _________
===========================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
____________________________
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
____________________________
Nabi
(Exact name of registrant as specified in charter)
Delaware 59-1212264
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
5800 Park of Commerce Boulevard, N.W.
Boca Raton, Florida 33487
(561) 989-5800
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
David J. Gury Copies to:
Chairman of the Board, President and Chief Constantine Alexander, Esq.
Executive Officer Nutter, McClennen & Fish, LLP
Nabi One International Place
5800 Park of Commerce Boulevard, N.W. Boston, MA 02110-2699
Boca Raton, FL 33487 (617) 439-2000
(561) 989-5800
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
________________
Approximate date of commencement of proposed sale to public: From time to
time after the date this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [_]
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
________________
CALCULATION OF REGISTRATION FEE
=========================================================================================================
Proposed Proposed
Title of Each Class of Maximum Maximum Amount of
Securities to be Registered Amount to be Offering Price Aggregate Registration
Registered Per Share/(1)/ Offering Price/(1)/ Fee
- ---------------------------------------------------------------------------------------------------------
Shares of Common Stock,
$.10 par value 1,666,667 $7.625 $12,708,336 $3,355
=========================================================================================================
/(1)/ Determined pursuant to Rule 457(c) under the Securities Act of 1933, as
amended, based upon the average of the high and low prices per share of
Nabi Common Stock reported on the Nasdaq National Market on July 20, 2000.
________________
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933, as amended, or until the Registration Statement
shall become effective on such date as the Commission, acting pursuant to said
Section 8(a), may determine.
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY
NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN
OFFER TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
SUBJECT TO COMPLETION
PRELIMINARY PROSPECTUS DATED JULY 25, 2000
1,666,667 Shares
Nabi
Common Stock
We are registering our common stock for resale by the security holders
identified in this Prospectus. We will not receive any proceeds from the
security holders' sale of their shares of our common stock.
For a description of the method of distribution of the shares, see page 4
of this Prospectus. We will bear all expenses related to the registration of the
shares of common stock.
We ask that you pay close attention to the "Factors to be Considered"
appearing in our Annual Report on Form 10-K for the fiscal year ended December
31, 1999 which is incorporated by reference into this Prospectus. See "Where You
Can Find More Information" on page 2 of this Prospectus.
Our common stock is currently traded on the Nasdaq National Market under
the symbol "NABI." On July 24, 2000, the last reported sales price for our
common stock was $8.00 per share.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED THESE SECURITIES OR DETERMINED IF THIS
PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
The date of this Prospectus is ___________.
THIS PROSPECTUS IS PART OF A REGISTRATION STATEMENT WE FILED WITH THE SECURITIES
AND EXCHANGE COMMISSION. YOU SHOULD RELY ONLY ON THE INFORMATION CONTAINED IN
OR INCORPORATED BY REFERENCE IN THIS PROSPECTUS. THE SEC ALLOWS US TO
"INCORPORATE BY REFERENCE" INFORMATION THAT WE FILE WITH IT, WHICH MEANS THAT WE
CAN DISCLOSE IMPORTANT INFORMATION TO YOU BY REFERRING THOSE DOCUMENTS TO YOU.
THE INFORMATION THAT WE FILE LATER WITH THE SEC WILL AUTOMATICALLY UPDATE AND
SUPERSEDE THIS INFORMATION. WE HAVE NOT AUTHORIZED ANYONE ELSE TO PROVIDE YOU
WITH DIFFERENT INFORMATION. WE ARE NOT MAKING AN OFFER OF THESE SECURITIES IN
ANY STATE WHERE THE OFFER IS NOT PERMITTED. YOU SHOULD NOT ASSUME THAT THE
INFORMATION IN THIS PROSPECTUS IS ACCURATE AS OF ANY DATE OTHER THAN THE DATE
PROVIDED ON THE FRONT PAGE OF THIS PROSPECTUS, REGARDLESS OF THE TIME OF
DELIVERY OF THIS PROSPECTUS OR ANY SALE OF COMMON STOCK.
WHERE YOU CAN FIND MORE INFORMATION
We have filed with the Securities and Exchange Commission (the "SEC") a
registration statement on Form S-3 under the Securities Act of 1933, as amended
(the "Securities Act"), to register the Nabi common stock owned by the security
holders identified in this Prospectus. This Prospectus is part of that
registration statement. As allowed by SEC rules, this Prospectus does not
contain all the information you can find in the registration statement or the
exhibits to the registration statement.
We file annual, quarterly and special reports, proxy statements and other
information with the SEC. You may read and copy any reports, statements or
other information we file at the SEC's public reference rooms located at Room
1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549, and at
the Commission's Regional Offices located at Seven World Trade Center, 13th
Floor, New York, New York 10048 and the Citicorp Center, 500 West Madison
Street, Suite 1400, Chicago, Illinois 60661. You can request copies of these
documents by writing to the SEC and paying a fee for the copying cost. Please
call the SEC at 1-800-SEC-0330 for further information on the public reference
rooms. Our SEC filings are also available to the public at the website
maintained by the SEC at "http://www.sec.gov."
The SEC allows us to "incorporate by reference" information that we file
with them, which means that we can disclose important information to you by
referring you to another document filed separately with the SEC. The information
incorporated by reference is an important part of this Prospectus, and
information that we file later with the SEC will automatically update and
supercede this information. We incorporate by reference the documents listed
below and any future filings we will we will make with the SEC under Sections
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"):
. Our Annual Report on Form 10-K for the fiscal year ended December 31,
1999.
. Our Quarterly Report on Form 10-Q for the fiscal quarter ended April
1, 2000.
. The description of Nabi's common stock contained in its Registration
Statement on Form 10, as amended, filed with the SEC pursuant to
Section 12 of the Exchange Act on May 4, 1970.
You may request a copy of any and all of these filings and documents at no cost,
by writing or telephoning us at the following address:
Nabi
Attention: Investor Relations - Thomas H. Mclain
5800 Park of Commerce Boulevard
Boca Raton, FL 33487
(561) 989-5800
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THE COMPANY
We are nearing completion of a multi-year transition from being a leading
provider of antibody products to other pharmaceutical manufacturers to becoming
a fully integrated biopharmaceutical company, developing, manufacturing and
marketing our own products for the prevention and treatment of infectious
diseases and immunological disorders. We have a portfolio of marketed products
and significant research and development capabilities that are focused on the
development and commercialization of products that prevent and treat infectious
and autoimmune diseases. We currently have several clinical trials underway in
these areas and have four marketed pharmaceutical products.
The Company was incorporated in 1969 in the State of Delaware. All
references in this Prospectus to "Nabi," "the Company," "we," or "us" are to
Nabi. We have our executive offices at 5800 Park of Commerce Boulevard, N.W.,
Boca Raton, Florida 33487. Our main telephone number is (561) 989-5800.
USE OF PROCEEDS
We are not selling the shares of Nabi common stock offered by the security
holders listed in this Prospectus. We will not receive any proceeds from the
sale of the common stock by the security holders.
SELLING SECURITY HOLDERS
The following table sets forth the names of the security holders and the
total number of shares of Nabi common stock registered by this registration
statement that each security holder may sell. If required, we will file a
supplement to this prospectus to describe any material changes in the terms of
the offering.
Because the security holders may offer all or only some of the shares, we
cannot determine the number of shares of common stock that the security holders
will own after completion of this offering. See "Plan of Distribution"
beginning on page 4 of this Prospectus.
Number of
Shares Number of
Beneficially Shares
Name Owned Prior to That May
- ----
Offering (1) Be Offered
------------ ----------
The Aries Master Fund II......................... 99,058 99,058
Aries Domestic Fund, L.P ........................ 52,774 52,774
Aries Domestic Fund II, L.P. .................... 14,835 14,835
Valor Capital Mgmt., L.P. ....................... 76,000 35,000
Clarion Partners, L.P............................ 68,000 68,000
Clarion Offshore Fund LTD........................ 32,000 32,000
Merlin BioMed Group.............................. 433,700 100,000
JALAA Equities, LP............................... 371,667 166,667
Deephaven Private Placement Trading LTD.......... 250,000 250,000
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Yale University Retirement Plan for Staff Employees...... 20,000 5,700
Yale University.......................................... 151,300 61,000
Tampsco Partnership II................................... 3,200 2,200
SG Partners LP........................................... 192,900 76,800
Sci-Tech Investment Partners, L.P. ...................... 63,400 25,500
Rochester Institute of Technology........................ 72,500 29,100
Matrix Technology Group N.V. ............................ 15,900 6,300
Foundation Partners Fund G.P............................. 11,000 4,000
Executive Technology Fund GP............................. 30,500 12,500
Walt Disney Company Retirement Plan...................... 184,500 73,400
Core Technology Fund Inc. ............................... 80,233 27,833
Alfred University........................................ 22,400 9,000
Ascend Partners, L.P. ................................... 64,800 64,800
Ascend Offshore Fund, LTD................................ 35,200 35,200
Cranshire Capital, LP ................................... 166,667 166,667
MK Global Technology Partners, L.P. ..................... 16,666 16,666
Aspira Capital Management, L.P. ......................... 25,000 25,000
Capital Ventures International........................... 166,667 166,667
Kozloff Partners L.P. ................................... 40,000 40,000
(1) To our knowledge, each security holder listed above owns less than one
percent of the issued and outstanding shares of Nabi common stock, except
for the Merlin BioMed Group, which owns approximately 1.2% of the issued
and outstanding shares of Nabi common stock, and JALAA Equities, LP, which
owns approximately 1.0% of the issued and outstanding shares of Nabi common
stock, each as of July 11, 2000.
PLAN OF DISTRIBUTION
The shares may be sold from time to time by the security holders in one or more
transactions at:
- - fixed prices,
- - market prices at the time of sale,
- - varying prices determined at the time of sale, or
- - negotiated prices.
The security holders may offer their shares in one or more of the following
transactions:
- - on any national securities exchange or quotation service on which the Nabi
common stock may be listed or quoted at the time of sale, including the
Nasdaq National Market;
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- - in the over-the-counter market;
- - in private transactions;
- - through options;
- - by pledge to secure debts or other obligations; or
- - a combination of any of the above transactions.
The security holders may effect these transactions by selling to or through
one or more broker-dealers, and broker-dealers involved in these transactions
may receive compensation in the form of underwriting discounts, concessions or
commissions from the security holders. The security holders and any broker-
dealers that participate in the distribution may, under certain circumstances,
be deemed to be "underwriters" within the meaning of the Securities Act, and any
commissions received by those broker-dealers and any profits realized on any
sale of the shares by them might be deemed to be underwriting discounts and
commissions under the Securities Act.
Under applicable rules and regulations under the Exchange Act, any person
engaged in the distribution of the shares may not simultaneously engage in
market making activities with respect to Nabi's common stock for a period of two
business days prior to the commencement of the distribution. In addition and
without limiting the foregoing, the security holders and any other person
participating in a distribution will be subject to applicable provisions of the
Exchange Act and the rules and regulations thereunder, including without
limitation, Regulation M under the Exchange Act, which may limit the timing of
purchases and sales of shares of Nabi common stock by the security holders or
any other person.
We will make copies of this Prospectus available to the security holders
and have informed the security holders of the need for delivery of a copy of
this Prospectus to each purchaser of the shares prior to or at the time of any
sale of the shares.
The outstanding common stock of Nabi is approved for quotation on the
Nasdaq National Market.
The security holders will pay all underwriting discounts, commissions,
transfer taxes and other expenses associated with the sale of the shares by
them.
LEGAL MATTERS
The validity of the issuance of the shares of common stock offered hereby
will be passed upon for us by Nutter, McClennen & Fish, LLP, Boston,
Massachusetts, our legal counsel.
EXPERTS
The consolidated financial statements of Nabi at December 31, 1999 and for
the year then ended incorporated in this Prospectus and Registration Statement
have been audited by Ernst & Young LLP, independent certified public
accountants, and at December 31, 1998, and for each of the two years in the
period ended December 31, 1998, by PricewaterhouseCoopers LLP, independent
certified public accountants, as set forth in their respective reports thereon
incorporated by reference, and are included in reliance upon such reports given
on the authority of such firms as experts in accounting and auditing.
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PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The expenses in connection with the offering to which this registration
statement relates, other than commissions, are to be borne by the Company and
are estimated as follows:
SEC Registration Fee ......................... $ 3,355
Accounting Fees .............................. $13,000
Legal Fees ................................... $15,000
Printing Expenses ............................ $ 3,000
Miscellaneous Expense......................... $ 4,000
Total......................................... $38,355
=======
Item 15. Indemnification of Directors and Officers.
The Company's By-laws, as amended and restated, provide for indemnification
of officers and directors to the fullest extent permitted by Section 145 of the
Delaware General Corporation Law. The provisions of Article VII of the
Company's By-laws constitute a contract of indemnification between the Company
and its officers and directors. Article VII, Section 6 of the Company's By-laws
permits the Company to purchase and maintain officers' and directors' liability
insurance in order to insure against the liabilities for which such officers and
directors are indemnified pursuant to Article VII, Section 1. The Company
provides officers' and directors' liability insurance for its officers and
directors.
The Company has entered into indemnification agreements with certain of its
directors and executive officers providing contractual indemnification by the
Company to the fullest extent permissible under Delaware law.
The Company and the security holders have agreed to indemnify each other
and each other's controlling persons, as applicable, against certain liabilities
under the Securities Act in connection with this registration statement.
Item 16. List of Exhibits.
Exhibit No.
- -----------
4* Registration Rights Agreement by and between Nabi and each security
holder dated July 11, 2000
5* Opinion of Nutter, McClennen & Fish, LLP
23.1* Consent of Ernst & Young LLP
23.2* Consent of PricewaterhouseCoopers LLP
23.3* Consent of Nutter, McClennen & Fish, LLP (included in Exhibit 5)
24.1* Power of Attorney (contained on Page 8)
_______
* Filed herewith.
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Item 17. Undertakings.
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 foregoing provisions, 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 against 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 Securities Act and will be governed by the final
adjudication of such issue.
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:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the Prospectus any facts or events arising after
the effective date of the registration statement (or the most recent post-
effective amendment thereof) which, individually or in the aggregate, represent
a fundamental change in the information set forth in the registration statement;
(iii) 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;
provided, however, that clauses (i) and (ii) do not apply if the information
required to be included in a post-effective amendment by these clauses is
contained in periodic reports filed by the Registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference 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; and
(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 Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Securities Exchange Act of 1934) 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.
-7-
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-3 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 25th day of
July, 2000.
NABI
By: /s/ David J. Gury
------------------------------------
David J. Gury
Chairman of the Board, President and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below on this Registration Statement hereby constitutes and appoints
David J. Gury, Thomas H. McLain and Constantine Alexander, and each of them,
with the full power to act without the other, his or her true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him or her and in his or her name, place and stead, in any and all
capacities (until revoked in writing) to sign any and all amendments (including
post-effective amendments and amendments thereto) to this Registration Statement
on Form S-3 of the registrant, and to file the same, with all exhibits thereto
and other 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
requisite and necessary fully to all intents and purposes as he or she might or
could do in person thereby ratifying and confirming all that said attorneys-in-
fact and agents or any of them, or their or his 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.
Signatures Title Date
---------- ----- ----
/s/ David J. Gury Chairman of the Board, President July 25, 2000
- ------------------------------------
David J. Gury Chief Executive Officer
/s/ Thomas H. McLain Senior Vice President, Corporate July 25, 2000
- ------------------------------------
Thomas H. McLain Services and Chief Financial Officer
/s/ Mark Smith Senior Director of Finance and July 25, 2000
- ------------------------------------
Mark Smith Chief Accounting Officer
/s/ Richard A. Harvey, Jr. Director July 25, 2000
- ------------------------------------
Richard A. Harvey, Jr.
/s/ David L. Castaldi Director July 25, 2000
- ------------------------------------
David L. Castaldi
/s/ David A. Thompson Director July 25, 2000
- ------------------------------------
David A. Thompson
/s/ George W. Ebright Director July 25, 2000
- ------------------------------------
George W. Ebright
/s/ Linda Jenckes Director July 25, 2000
- ------------------------------------
Linda Jenckes
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