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Securities Act of 1933
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Re: |
Nabi Biopharmaceuticals |
Based on the facts presented, the Division’s views are as follows. Capitalized terms have the same meanings as defined in your letter.
The Division will not recommend enforcement action to the Commission if Nabi, in reliance on your opinion of counsel that the exemption under Section 3(a)(10) of the Securities Act is available, issues Nabi Shares to the holders of outstanding Biota Shares pursuant to the Scheme of Arrangement, each as described in your letter, without registration under the Securities Act. In reaching this position, we have noted that:
The Division is of the view that the Nabi Shares received pursuant to the Scheme of Arrangement will not be “restricted securities” within the meaning of Securities Act Rule 144(a)(3). Further, the Division is of the view that recipients of the Nabi Shares may resell these securities as follows:
(1) Persons who are not affiliates of Nabi and have not been affiliates of Nabi within 90 days of the date of consummation of the Scheme of Arrangement may sell Nabi Shares received pursuant to the Scheme of Arrangement without regard to the requirements of Rules 144 under the Securities Act; and
(2) Persons who are affiliates of Nabi may sell Nabi Shares received pursuant to the Scheme of Arrangement in accordance with the provisions of Rule 144.
These positions are based upon the representations made in your letter to the Division. Any different facts or conditions might require a different conclusion. Moreover, regarding whether the Section 3(a)(10) exemption from registration is available for the Nabi Shares to be issued under the Scheme of Arrangement, this response expresses the Division’s position on enforcement action only and does not express any legal conclusion on the question presented.
Sincerely,
Sebastian Gomez Abero
Special Counsel
The Incoming Letter is in Acrobat format.
http://www.sec.gov/divisions/corpfin/cf-noaction/2012/nabibiopharm062012-3a10.htm
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