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U.S. Securities and Exchange Commission

Securities Act of 1933
Section 3(a)(10)

June 20, 2012

Response of the Office of Chief Counsel
Division of Corporation Finance

Re:

Nabi Biopharmaceuticals
Incoming letter dated June 18, 2012

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 Court will conduct a hearing on the fairness of the Scheme of Arrangement to the holders of Biota Shares;
     
  • the Court will approve the fairness of the terms and conditions of the Scheme of Arrangement to the holders of Biota Shares before issuance of the Nabi Shares pursuant to the Scheme of Arrangement;
     
  • all prospective recipients of the Nabi Shares under the Scheme of Arrangement will receive notice of the hearing regarding the Scheme of Arrangement and will have the opportunity to be heard at the hearing; and
     
  • Nabi will advise the Court before the hearing that, if the Court approves the terms and conditions of the Scheme of Arrangement, its sanctioning of the Scheme of Arrangement will constitute the basis for the issuance of the Nabi Shares under the Scheme of Arrangement without registration under the Securities Act, in reliance on the exemption from registration provided by Securities Act Section 3(a)(10).

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


Incoming Letter:

The Incoming Letter is in Acrobat format.


http://www.sec.gov/divisions/corpfin/cf-noaction/2012/nabibiopharm062012-3a10.htm


Modified: 06/20/2012