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-
================================================================================
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)
-------------------
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.
================================================================================
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.
-------------------------
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,
-2-
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.
-----------------------------------
Not applicable.
ITEM 8. EXHIBITS.
--------
See the exhibit index immediately preceding the exhibits attached hereto.
ITEM 9. UNDERTAKINGS.
------------
(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.
-4-
SIGNATURES
----------
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
-5-
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
-6-