As filed with the Securities and Exchange Commission on April 2, 2002
Registration No. 333-_________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
BIOMARIN PHARMACEUTICAL INC.
(Exact Name of Registrant as Specified in Its Charter)
Delaware 68-0397820
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
371 Bel Marin Keys Boulevard, Suite 210
Novato, California 94949
(Address of Principal Executive Offices)
1997 STOCK PLAN, AS AMENDED
1998 DIRECTOR OPTION PLAN
1998 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the Plans)
Fredric D. Price
Chairman and Chief Executive Officer
371 Bel Marin Keys Boulevard, Suite 210
Novato, California 94949
(Name and Address of Agent For Service)
(415) 884-6700
(Telephone Number, Including Area Code, of Agent for Service)
Copies to:
Siobhan McBreen Burke, Esq.
Paul, Hastings, Janofsky & Walker LLP
555 South Flower Street, 23rd Floor
Los Angeles, CA 90071-2371
(213) 683-6000
CALCULATION OF REGISTRATION FEE
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Title Of Amount Proposed Maximum Proposed Maximum Amount of
Securities To Be Offering Price Aggregate Offering Registration
To Be Registered Registered (1) Per Share (2) Price (2) Fee (2)
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Common Stock, $0.001 par value,
issuable pursuant to the 1997 Stock
Plan, as amended. 5,917,229 $9.67 $57,219,604.43 $5,625
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Common Stock, $0.001 par value,
issuable pursuant to the 1998 Director
Option Plan. 400,000 $9.67 $3,868,000.00 $356
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Common Stock, $0.001 par value,
issuable pursuant to the 1998 Employee
Stock Purchase Plan. 400,000 $9.67 $3,868,000.00 $356
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(1) Pursuant to Rule 416 promulgated under the Securities Act of 1933, as
amended (the "Securities Act"), this Registration Statement shall also
cover any additional shares of Common Stock which become issuable under
each of the 1997 Stock Plan, the 1998 Director Option Plan and the 1998
Employee Stock Purchase Plan, by reason of any stock dividend, stock
split, recapitalization or other similar transaction effected without
the receipt of consideration which results in an increase in the number
of the outstanding shares of BioMarin Pharmaceutical Inc. Common Stock.
(2) Estimated solely for the purpose of calculating the amount of the
registration fee in accordance with Rules 457(c) and (h) under the
Securities Act, on the basis of the average of high and low sale prices
for a share of common stock of BioMarin Pharmaceutical Inc. (BMRN) as
reported on the Nasdaq National Market on April 1, 2002.
PART I
STATEMENT UNDER GENERAL INSTRUCTION E.
REGISTRATION OF ADDITIONAL SECURITIES
The shares covered by this Registration Statement represent additional
shares of the Registrant's Common Stock that have become available for issuance
under the BioMarin Pharmaceutical Inc. 1997 Stock Plan, as amended, the 1998
Director Option Plan and the 1998 Employee Stock Purchase Plan (the "Stock
Plans") as a result of an "evergreen provision" of each of the Stock Plans which
automatically increase the number of shares authorized for issuance thereunder
on the first day of each fiscal year. Since adoption, the evergreen provision,
the number of shares available for issuance under the Stock Plans has increased
from 5,694,259 to 12,411,488. Unless otherwise noted herein, the contents of the
Registrant's Form S-8 Registration Statement (File No. 333-84787) relating to
the Stock Plans are incorporated by reference into this Registration Statement.
PART II
Item 8. Exhibits
Exhibit Description
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5.1 Opinion of Paul, Hastings, Janofsky & Walker LLP.
23.1 Consent of Arthur Andersen LLP, Independent Auditors.
23.2 Consent of Paul, Hastings, Janofsky & Walker LLP (included in
Exhibit 5.1).
24.1 Power of Attorney (contained on the signature page).
SIGNATURES1
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 Novato, State of California, on March 29, 2002.
BIOMARIN PHARMACEUTICAL INC.
By: /s/ Fredric D. Price
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Name: Fredric D. Price
Title: Chairman, Chief Executive
Officer and Director
(Principal Executive
Officer)
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Fredric D. Price and Emil D. Kakkis,
M.D., Ph.D. as such person's 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, to sign any and all amendments
(including post-effective amendments) to this Registration Statement, 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 to be done in
connection therewith, as fully to all intents and purposes as he or she might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them, or their or his or her substitutes
or substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed below by the following persons in the capacities and
dates indicated.
Signatures Title Date
/s/ Fredric D. Price Chairman, Chief Executive Officer March 29, 2002
----------------------- and Director (Principal Executive
Fredric D. Price Officer)
/s/ Kim Tsuchimoto-Evans Vice President, Controller March 29, 2002
------------------------ (Principal Financial and Accounting
Kim Tsuchimoto-Evans Officer)
/s/ Grant W. Denison, Jr. Director March 29, 2002
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Grant W. Denison, Jr.
/s/ Phyllis I. Gardner Director March 29, 2002
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Phyllis I. Gardner, M.D.
/s/ Erich Sager Director March 29, 2002
-----------------------
Erich Sager
/s/ Gwynn R. Williams Director March 29, 2002
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Gwynn R. Williams
2
INDEX TO EXHIBITS
Exhibit Description
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5.1 Opinion of Paul, Hastings, Janofsky & Walker LLP.
23.1 Consent of Arthur Andersen LLP, Independent Auditors.
23.2 Consent of Paul, Hastings, Janofsky & Walker LLP (included in
Exhibit 5.1).
24.1 Power of Attorney (contained on the signature page).
3
Exhibit 5.1
OPINION OF PAUL, HASTINGS, JANOFSKY & WALKER LLP
April 1, 2002
BioMarin Pharmaceutical Inc.
371 Bel Marin Keys Boulevard, Suite 210
Navato, California 94949
Ladies and Gentlemen:
We are furnishing this opinion of counsel to BioMarin Pharmaceutical Inc.,
a Delaware corporation (the "Company"), for filing as Exhibit 5.1 to the
Registration Statement on Form S-8 (the "Registration Statement") to be filed by
the Company with the Securities and Exchange Commission under the Securities Act
of 1933, as amended, relating to the issuance and sale by the Company of up to
6,717,229 shares (the "Shares") of its Common Stock, par value $.001 per share
("Common Stock"), pursuant to the Company's 1997 Stock Plan, the Company's 1998
Director Option Plan and the Company's 1998 Employee Stock Purchase Plan as
amended (as each may have been so amended, the "Plans").
We have examined the Certificate of Incorporation and Bylaws, each as
amended to date, of the Company, and the originals, or copies certified or
otherwise identified, of records of corporate action of the Company as furnished
to us by the Company, certificates of public officials and of representatives of
the Company, and such other instruments and documents as we deemed necessary, as
a basis for the opinions hereinafter expressed. In such examination, we have
assumed the genuineness of all signatures, the authenticity of all corporate
records and other documents submitted to us, the conformity to original
documents submitted to us as certified or photostatic copies and the due
execution and delivery of all documents where due execution and delivery are a
prerequisite to the effectiveness thereof. We have also assumed that, at the
time the Shares are issued, the Company will have sufficient authorized and
unissued shares of Common Stock.
Based upon our examination as aforesaid, and in reliance upon our
examination of such questions of law as we deem relevant under the
circumstances, we are of the opinion that the Shares, when purchased and issued
as described in the Registration Statement and in accordance with the Plans
(including the receipt of the full purchase price therefor), will be validly
issued, fully paid and nonassessable.
We express no opinion with respect to the applicability or effect of the
laws of any jurisdiction other than the Delaware General Corporation Law, as in
effect as of the date hereof.
We hereby consent to the filing of this opinion of counsel as Exhibit 5.1
to the Registration Statement.
Very truly yours,
/s/ Paul, Hastings, Janofsky & Walker LLP
Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We consent to the incorporation by reference in this Registration Statement on
Form S-8 pertaining to the (i) 1997 Stock Plan, as amended; (ii) 1998 Director
Option Plan; and (iii) 1998 Employee Stock Purchase Plan of BioMarin
Pharmaceutical Inc., of our report dated February 21, 2002, with respect to the
financial statements of BioMarin Pharmaceutical Inc. included in its Annual
Report (Form 10-K) for the year ended December 31, 2001, filed with the
Securities and Exchange Commission.
/s/ Arthur Andersen LLP
San Francisco, California
March 28, 2002