<PAGE>
This document contains 12 pages. The exhibit index is located on page 4.
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)
-------------------------
1990 EQUITY INCENTIVE PLAN
(Full title of plan)
-------------------
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
<TABLE>
<CAPTION>
========================================================================================================================
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
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
$.10 par value per share 2,500,000 Shares $3.24(2) $8,100,000(2) $2,389.50
========================================================================================================================
</TABLE>
(1) This Registration Statement covers 2,500,000 shares of Common Stock which
may be issued under Nabi's 1990 Equity Incentive Plan. In addition, this
Registration Statement also covers an indeterminate number of additional
shares of Common Stock which may be issued under said Plan 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) 241,626 shares underlying
awards made under the Plan having a per share exercise price of $3.4375,
and (ii) 2,258,374 shares underlying awards to be made 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.
===============================================================================
<PAGE>
------------------------------
In accordance with General Instruction E to Form S-8, the contents of the
registrant's Registration Statements on Form S-8 (File Nos. 33-42224, 33-64092,
33-60795 and 33-65069) relating to the registrant's 1990 Equity Incentive Plan
(the "Prior Form S-8s") are incorporated by reference in this Registration
Statement.
------------------------------
In accordance with General Instruction E to Form S-8, the following
information is not contained in the Prior Form S-8s:
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 8. EXHIBITS.
--------
See the exhibit index immediately preceding the exhibits attached hereto.
-2-
<PAGE>
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 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.
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
- --------------------------------- --------------------------------- ---------------
<S> <C> <C>
/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
Thomas H. McLain Officer
/s/ Lorraine M. Breece Controller and Principal June 4, 1998
- --------------------------------- Accounting Officer
Lorraine M. Breece
/s/ John C. Carlisle Executive Vice President, June 4, 1998
- --------------------------------- 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
</TABLE>
-3-
<PAGE>
EXHIBIT INDEX
Exhibit No. Title Page
- ---------- ----- ----
Exhibit 4.1 1990 Equity Incentive Plan, as amended to date 5
Exhibit 5 Opinion of Nutter, McClennen & Fish, LLP 11
Exhibit 23.1 Consent of Nutter, McClennen & Fish, LLP Contained in
Exhibit 5
Exhibit 23.2 Consent of Price Waterhouse LLP 12
-4-
<PAGE>
Exhibit 4.1
-----------
NABI
1990 EQUITY
INCENTIVE PLAN
SECTION 1. PURPOSE
The purpose of the 1990 Equity Incentive Plan (the "Plan") of Nabi (the
"Company") is to enable the Company and its subsidiaries to attract, retain and
motivate their employees and consultants and to enable these employees and
consultants to participate in the long-term growth of the Company by providing
for or increasing the proprietary interests of such persons in the Company,
thereby assisting the Company to achieve its long-range performance goals.
SECTION 2. DEFINITIONS
As used in the Plan:
"Act" means the Securities Exchange Act of 1934, as amended.
"Award" means any Option, Stock Appreciation Right, Performance Share,
Restricted Stock or Stock Unit awarded under the Plan.
"Board" means the Board of Directors of the Company.
"Committee" means the Stock Option Committee of the Board or any
successor thereto.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time.
"Common Stock" or "Stock" means the Common Stock, $0.10 par value, of
the Company.
"Fair Market Value" means, with respect to Common Stock or any other
property, the fair market value of such property as determined by the
Committee in good faith or in the manner established by the Committee from
time to time.
"Incentive Stock Option" means an option to purchase shares of Common
Stock awarded to a Participant under the Plan which is intended to meet the
requirements of Section 422A of the Code or any successor provision.
"Nonconforming Awards" shall mean any Award permitted under the
provisos set forth in Sections 6(b) and 9(b).
"Nonstatutory Stock Option" means an option to purchase shares of
Common Stock awarded to a Participant under the Plan which is not intended
to be an Incentive Stock Option.
"Option" means an Incentive Stock Option or a Nonstatutory Stock
Option.
"Participant" means a person selected by the Committee to receive an
Award under the Plan.
"Performance Cycle" or "Cycle" means the period of time selected by
the Committee during which performance is measured for the purpose of
determining the extent to which an award of Performance Shares has been
earned.
"Performance Shares" means shares of Common Stock awarded to a
Participant under Section 8.
"Restricted Period" means the period of time selected by the Committee
during which an award of Restricted Stock may be forfeited to the Company.
<PAGE>
"Restricted Stock" means shares of Common Stock awarded to a
Participant under Section 9 which are subject to forfeiture.
"Stock Appreciation Right" or "SAR" means a right awarded to a
Participant under Section 7.
"Stock Unit" means a share of Common Stock or a unit is valued in
whole or in part by reference to, or otherwise based on, the value of a
share of Common Stock, awarded to a Participant under Section 10.
SECTION 3. ADMINISTRATION
The Plan shall be administered by the Committee. The Committee shall have
the authority to adopt, alter and repeal such administrative rules, guidelines
and practices governing the operating of the Plan as it shall from time to time
consider advisable, to interpret the provisions of the Plan and any Award, and
to decide all disputes arising in connection with the Plan. The Committee's
decisions and interpretations shall be final and binding.
SECTION 4. ELIGIBILITY
All employees and consultants of the Company or any of its subsidiaries,
including any director who is an employee or consultant of the Company, shall be
eligible to be Participants in the Plan.
SECTION 5. STOCK AVAILABLE FOR AWARDS
(a) Awards may be made under the Plan for up to 6,745,000 shares of Common
Stock. If any Award in respect of shares of Common Stock expires or is
terminated before exercise or is forfeited for any reason or settled in a manner
that results in fewer shares of Common Stock outstanding than were initially
awarded, including without limitation the surrender of shares of Common Stock in
payment for the Award or any tax obligation thereon, the shares of Common Stock
subject to such Award or so surrendered, as the case may be, to the extent of
such expiration, termination, forfeiture or decrease, shall again be available
for award under the Plan. Shares of Common Stock issued under the Plan may
consist in whole or in part of authorized but unissued shares or treasury
shares.
(b) In the event that the Committee determines in its sole discretion that
any stock dividend, extraordinary cash dividend, creation of a class of equity
securities, recapitalization, reorganization, merger, consolidation, split-up,
spin-off, combination, exchange of shares, warrants or rights offering to
purchase Common Stock at a price substantially below fair market value, or other
similar transaction affects the Common Stock such that an adjustment is required
in order to preserve the benefits or potential benefits intended to be made
available under the Plan, the Committee shall have the right to be adjusted
equitably any or all of (i) the number and kind of shares of stock or securities
in respect of which Awards may be made under the Plan, (ii) the number and kind
of shares subject to outstanding Awards, and (iii) the award, exercise or
conversion price with respect to any of the foregoing, and if considered
appropriate, the Committee may make provision for a cash payment with respect to
an outstanding Award, provided that the number of shares subject to any Award
shall always be a whole number.
(c) The Company may make Awards under the Plan in substitution for stock
and stock-based awards held by employees of another corporation who concurrently
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 the acquisition by the Company or a subsidiary of
the Company of property or stock of the employing corporation. The Committee
may direct that the substitute awards be granted on such terms and conditions as
the Committee considers appropriate in the circumstances. The shares which may
be delivered under such substitute Awards shall be in addition to the maximum
number of shares provided for in section (a) above only to the extent that the
substitute Awards are both (i) granted to persons whose relationship to the
Company does not make (and is not expected to make) them subject to Section
16(b) of the Act and (ii) are granted in substitution for awards issued under a
plan approved, to the extent then required under Rule 16b-3 (or any successor
rule) under the Act, by the stockholders of the entity which issued such
predecessor awards.
(d) In no event shall any Participant receive in any calendar year Awards
under the Plan and any other grants for more than Two Hundred Fifty Thousand
(250,000) shares of Common Stock.
-2-
<PAGE>
SECTION 6. OPTIONS
(a) Subject to the provisions of the Plan, the Committee may award
Incentive Stock Options and Nonstatutory Stock Options and determine the number
of shares to be covered by each Option, the option price therefor, the term of
the Option, and the other conditions and limitations applicable to the exercise
of the Option. The terms and conditions of Incentive Stock Options shall be
subject to and comply with Section 422A of the Code, or any successor provision,
and any regulations thereunder. Anything in the Plan to the contrary
notwithstanding, no term of the Plan relating to Incentive Stock Options shall
be interpreted, amended or altered, nor shall any discretion or authority
granted to the Committee under the Plan be so exercised, so as to disqualify the
Plan or, without the consent of the optionee, any Incentive Stock Option granted
under the Plan, under Section 422A of the Code.
(b) The option price per share of Common Stock purchasable under an Option
shall not be less than 100% of the Fair Market Value of the Common Stock on the
date of award with respect to Incentive Stock Options and not less than 85% of
the Fair Market Value of the Common Stock on the date of award with respect to
Nonstatutory Stock Options; provided, however, that with respect to Nonstatutory
Stock Options, the option price per share of Common Stock purchasable under such
Options may be less than 85% (but never less than 50%) of the Fair Market Value
of the Common Stock on the date of award of the Nonstatutory Stock Option so
long as any such Non-Conforming Awards, together with all other Non-Conforming
Awards outstanding at the time, do not cover shares of Common Stock aggregating
more than five percent of the shares of Common Stock reserved for issuance under
the Plan at the time. If the Participant owns or is deemed to own (by reason of
the attribution rules applicable under Section 425(d) of the Code) more than 10%
of the combined voting power of all classes of stock of the Company or any
subsidiary or parent corporation of the Company and an Incentive Stock Option is
granted to such Participant, the option price shall be not less than 110% of
Fair Market Value of the Common Stock on the date of award.
(c) No Incentive Stock Option shall be exercisable more than ten years
after the date the option is awarded and no Non-Qualified Stock Option shall be
exercisable more than ten years and one day after the date the option is
awarded. If a Participant owns or is deemed to own (by reason of the attribution
rules of Section 425(d) of the Code) more than 10% of the total combined voting
power of all classes of stock of the Company or any subsidiary or parent
corporation of the Company and an Incentive Stock Option is awarded to such
Participant, the term of such option shall be no more than five years from the
date of award.
(d) No shares shall be delivered pursuant to any exercise of an Option
until payment in full of the option price therefor is received by the Company.
Such payment may be made in whole or in part in cash or by certified or bank
check or, to the extent permitted by the Committee at or after the award of the
Option, by delivery of a note or shares of Common Stock owned by the optionee,
including Restricted Stock, valued at their Fair Market Value on the date of
delivery, or such other lawful consideration as the Committee may determine.
(e) Except to the extent the Committee shall otherwise determine, whether
at the time the Option is granted or thereafter, no Option shall be transferable
by the Participant otherwise than by will or by the laws of descent and
distribution, and all Options shall be exercisable, during the Participant's
lifetime, only by the Participant.
(f) The Committee may at any time accelerate the exercisability of all or
any portion of any Option.
(g) Once an Option is awarded, the price per share of Common Stock
purchasable under the Option shall not be reduced without the approval of the
stockholders of the Company.
SECTION 7. STOCK APPRECIATION RIGHTS
(a) A Stock Appreciation Right is an Award entitling the Participant to
receive an amount in cash or shares of Common Stock or a combination thereof
having a value equal to (or if the Committee shall so determine at time of
grant, less than) the excess of the Fair Market Value of a share of Common Stock
on the date of exercise over the Fair Market Value of a share of Common Stock on
the date of grant (or over the option exercise price, if the Stock Appreciation
Right was granted in tandem with a Stock Option) multiplied by the number of
shares with respect to which the Stock Appreciation Right shall have been
exercised.
(b) Subject to the provisions of the Plan, the Committee may award SARs in
tandem with an Option (at or after the award of the Option), or alone and
unrelated to an Option, and determine the terms and conditions applicable
thereto, including the form of payment. SARs granted in tandem with an Option
shall terminate to the extent that the related Option is exercised, and the
related Option shall terminate to the extent that the tandem SARs are exercised.
-3-
<PAGE>
(c) An SAR related to an Option which can be exercised only during limited
periods following a change in control of the Company may entitle the Participant
to receive an amount based upon the highest price paid or offered for Common
Stock in any transaction relating to the change in control or paid during the
thirty-day period immediately preceding the occurrence of the change in control
in any transaction reported in the stock market in which the Common Stock is
normally traded.
(d) Notwithstanding that an Option at the time of exercise shall not be
accompanied by a related Stock Appreciation Right, if the market price of the
shares subject to such Option exceeds the exercise price of such Option at the
time of its exercise, the Committee may, in its discretion, cancel such Option,
in which event the Company shall pay to the person exercising such Option an
amount equal to the difference between the Fair Market Value of the Common Stock
to have been purchased pursuant to such exercise of such Option (determined on
the date the Option is canceled) and the aggregate consideration to have been
paid by such person upon such exercise. Such payment shall be by check, bank
draft or in Common Stock having a Fair Market Value (determined on the date the
payment is to be made) equal to the amount of such payments or any combination
thereof, as determined by the Committee. The Committee may exercise its
discretion under the first sentence of this paragraph (d) only in the event of a
written request of the person exercising the option, which request shall not be
binding on the Committee.
SECTION 8. PERFORMANCE SHARES
(a) A Performance Share is an Award entitling the Participant to acquire
shares of Common Stock upon the attainment of specified performance goals.
Subject to the provisions of the Plan, the Committee may award Performance
Shares and determine the performance goals applicable to each such Award, the
number of such shares for each Performance Cycle, the duration of each
Performance Cycle and all other limitations and conditions applicable to the
awarded Performance Shares. There may be more than one Performance Cycle in
existence at any one time, and the duration of Performance Cycles may differ
from each other. The payment value of each Performance Share shall be equal to
the Fair Market Value of one share of Common Stock on the date the Performance
Share is earned or, in the discretion of the Committee, on the date the
Committee determines that the Performance Share has been earned.
(b) During any Performance Cycle, the Committee may adjust the performance
goals for such Performance Cycle as it deems equitable in recognition of unusual
or non-recurring events affecting the Company, changes in applicable tax laws or
accounting principles, or such other factors as the Committee may determine.
(c) As soon as practicable after the end of a Performance Cycle, the
Committee shall determine the number of Performance Shares which have been
earned on the basis of performance in relation to the established performance
goals. The payment values of earned Performance Shares shall be distributed to
the Participant as soon as practicable thereafter. The Committee shall
determine, at or after the time of award, whether payment values will be settled
in whole or in part in cash or other property, including Common Stock or Awards.
SECTION 9. RESTRICTED STOCK
(a) A Restricted Stock Award is an Award entitling the Participant to
acquire shares of Common Stock for a purchase price (which may be zero) equal to
or less than their par value, subject to such conditions, including a Company
right during a specified period or periods to repurchase such shares at their
original purchase price (or to require forfeiture of such shares if the purchase
price was zero) upon the Participant's termination of employment.
(b) Subject to the provisions of the Plan, the Committee may award shares
of Restricted Stock and determine the purchase price (if any) therefor, the
duration of the Restricted Period during which, and the conditions under which,
the shares may be forfeited to or repurchased by the Company and the other terms
and conditions of such Awards. Shares of Restricted Stock may be issued for no
cash consideration or such minimum consideration as may be required by
applicable law. Restricted Stock Awards shall not permit the right of the
Company to repurchase shares of Restricted Stock or the requirement that such
shares be forfeited to the Company to lapse in less than three years; provided,
however, that such lapsing shall be permitted so long as any such Non-Conforming
Awards, together with all other Non-Conforming Awards outstanding at the time,
do not cover shares of Common Stock aggregating more than five percent of the
shares of Common Stock reserved for issuance under the Plan at the time.
(c) Shares of Restricted Stock may not be sold, assigned, transferred,
pledged or otherwise encumbered, except as permitted by the Committee, during
the Restricted Period. Shares of Restricted Stock shall be evidenced in such
manner
-4-
<PAGE>
as the Committee may determine. Any certificates issued in respect of
shares of Restricted Stock shall be registered in the name of the Participant
and unless otherwise determined by the Committee, deposited by the Participant,
together with a stock power endorsed in blank, with the Company. At the
expiration of the Restricted Period, the Company shall deliver such certificates
to the Participant.
(d) A Participant shall have all the rights of a shareholder with respect
to the Restricted Stock including voting and dividend rights, subject to
nontransferability restrictions and Company repurchase or forfeiture rights
described in this Section and subject to any other conditions contained in the
Award.
SECTION 10. STOCK UNITS
(a) Subject to the provisions of the Plan, the Committee may award Stock
Units subject to such terms, restrictions, conditions, performance criteria,
vesting requirements and payment rules as the Committee shall determine.
(b) Shares of Common Stock awarded in connection with a Stock Unit shall
be issued for no cash consideration or such minimum consideration as may be
required by applicable law.
SECTION 11. GENERAL PROVISIONS APPLICABLE TO AWARDS
(a) Notwithstanding any other provision of the Plan, to the extent
required to qualify for the exemption provided by Rule 16b-3 under the Act, and
any successor provision, (i) any Common Stock or other equity security offered
under the Plan to a Person subject to Section 16 of the Act may not be sold for
at least six months after acquisition and (ii) any Option, SAR or other similar
right related to an equity security, issued under the Plan to such a person
shall not be transferable other than by will or the laws of descent and
distribution or pursuant to a qualified domestic relations order as defined in
the Code or Title I of the Employee Retirement Income Security Act, or the rules
thereunder, shall not be exercisable for at least six months, and shall be
exercisable during the Participant's lifetime only by the Participant or the
Participant's guardian or legal representative.
(b) Each Award under the Plan shall be evidenced by a writing delivered to
the Participant specifying the terms and conditions thereof and containing such
other terms and conditions not inconsistent with the provisions of the Plan as
the Committee considers necessary or advisable to achieve the purposes of the
Plan or comply with applicable tax regulatory laws and accounting principles.
(c) Each Award may be made alone, in addition to or in relation to any
other award. The terms of each Award need not be identical, and the Committee
need not treat Participants uniformly. Except as otherwise provided by the Plan
or a particular Award, any determination with respect to an Award may be made by
the Committee at the time of award or at any time thereafter.
(d) The Committee shall determine whether Awards are settled in whole or
in part in cash, Common Stock, other securities of the Company, Awards or other
property. The Committee may permit a Participant to defer all or any portion of
a payment under the Plan, including the crediting of interest on deferred
amounts denominated in cash and dividend equivalents on amounts denominated in
Common Stock.
(e) In the discretion of the Committee, any Award under the Plan may
provide the Participant with (i) dividends or dividend equivalents payable
currently or deferred with or without interest, and (ii) cash payments in lieu
of or in addition to an Award.
(f) The Committee shall determine the effect on an Award of the
disability, death, retirement or other termination of employment of a
Participant and the extent to which, and the period during which, the
Participant's legal representative, guardian or designated beneficiary may
receive payment of an Award or exercise rights thereunder.
(g) In order to preserve a Participant's rights under an Award in the
event of a change in control of the Company, the Committee in its discretion
may, at the time an Award is made or at any time thereafter, take one or more of
the following actions with respect to any such change of control; (i) provide
for the acceleration of any time period relating to the exercise or realization
of the Award, (ii) provide for the Purchase of the Award upon the Participant's
request for an amount of cash or other property that could have been received
upon the exercise or realization of the Award had the Award been currently
exercisable or payable, (iii) adjust the terms of the Award in a manner
determined by the Committee,
-5-
<PAGE>
(iv) cause the Award to be assumed, or new rights substituted therefor, by
another entity, or (v) make such other provision as the Committee may consider
equitable and in the best interests of the Company.
(h) The Participant shall pay to the Company, or make provision
satisfactory to the Committee for payment of, any taxes required by law to be
withheld in respect of Awards under the Plan no later than the date of the event
creating the tax liability. In the Committee's discretion, such tax obligations
may be paid in whole or in part in shares of Common Stock, including shares
retained from the Award creating the tax obligation, valued at their Fair Market
Value on the date of delivery. The Company may, to the extent permitted by law,
deduct any such tax obligations from any payment of any kind otherwise due to
the Participant.
(i) For purposes of the Plan, the following events shall not be deemed a
termination of employment of a Participant:
(i) a transfer to the employment of the Company from a subsidiary or
from the Company to a subsidiary, or from one subsidiary to another; or
(ii) an approved leave of absence for military service or sickness, or
for any other purpose approved by the Company, if the Participant's right
to reemployment is guaranteed either by a statute or by contract or under
the policy pursuant to which the leave of absence was granted or if the
Committee otherwise so provides in writing.
For purposes of the Plan, employees of a subsidiary of the Company shall be
deemed to have terminated their employment on the date on which such subsidiary
ceases to be a subsidiary of the Company.
(j) The Committee may amend, modify or terminate any outstanding Award,
including substituting therefor another Award of the same or a different type,
changing the date of exercise or realization and converting an Incentive Stock
Option to a Nonstatutory Stock Option, provided that the Participant's consent
to such action shall be required unless the Committee determines that the
action, taking into account any related action, would not materially and
adversely affect the Participant, and provided further that, notwithstanding the
foregoing, the Committee may not simultaneously terminate an Option and
substitute therefor another Option having a lower per share exercise price.
SECTION 12. MISCELLANEOUS
(a) No person shall have any claim or right to be granted an Award, and
the grant of an Award shall not be construed as giving a Participant the right
to continued employment. The Company expressly reserves the right at any time to
dismiss a Participant free from any liability or claim under the Plan, except as
expressly provided in the applicable Award.
(b) Subject to the provisions of the applicable Award, no Participant
shall have any rights as a shareholder with respect to any shares of Common
Stock to be distributed under the Plan until he or she becomes the holder
thereof. A Participant to whom shares of Common Stock is awarded shall be
considered the holder of the Shares at the time of the Award except as otherwise
provided in the applicable Award.
(c) Subject to the approval of the shareholders of the Company, the Plan
shall be effective on May 8, 1990. Prior to such approval, Awards may be made
under the Plan expressly subject to such approval.
(d) The Board may amend, suspend or terminate the Plan or any portion
thereof at any time, provided that no amendment shall be made without
shareholder approval if such approval is necessary to comply with any applicable
tax or regulatory requirement, including any requirement for exemptive relief
under Section 16(b) of the Securities Exchange Act of 1934, or any successor
provisions.
(e) Awards may not be made under the Plan after May 7, 2000, but then
outstanding Awards may extend beyond such date.
-6-
<PAGE>
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, FL 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 2,500,000 shares of the
Company's common stock, $0.10 par value per share (the "Common Stock"), issuable
pursuant to the Company's 1990 Equity Incentive Plan, as amended to date (the
"Plan"), and an indeterminate number of shares of such Common Stock which may be
issued or become issuable under the Plan 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
amendment to the Plan, 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,
the Organizational Documents and the Delaware General Corporation Law, the
2,500,000 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 by reason of stock dividends, stock splits or other
recapitalizations hereafter executed, if and when issued in accordance with the
terms of the Plan 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
<PAGE>
Exhibit 23.2
------------
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We hereby consent to the incorporation by reference in the 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
