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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): September 11, 2002
BioMarin Pharmaceutical Inc.,
a Delaware Corporation
(Exact name of registrant as specified in its charter)
Delaware 000-26727 68-0397820
(State or other jurisdiction of (Commission (IRS Employer
incorporation or organization) File Number) Identification No.)
371 Bel Marin Keys Boulevard, Suite 210, Novato, California 94949
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (415) 884-6700
Not Applicable
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(Former name or former address, if changed since last report)
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Item 5. Other Events.
On September 11, 2002 the Board of Directors of BioMarin Pharmaceutical
Inc. (the "Company") authorized a dividend of one preferred share purchase right
(a "Right") for each share of common stock, $.001 par value per share ("Common
Shares") of the Company outstanding at the close of business on September 23,
2002 (the "Record Date"). As long as the Rights are attached to the Common
Shares, the Company will issue one Right (subject to adjustment) with each new
Common Share so that all such shares will have attached Rights. When
exercisable, each Right will entitle the registered holder to purchase from the
Company one one-hundredth of a share of Series B Junior Participating Preferred
Stock (the "Preferred Shares") at a price of $35.00 per one-hundredth of a
Preferred Share, subject to adjustment (the "Purchase Price"). The description
and terms of the Rights are set forth in a Rights Agreement, dated as of
September 11, 2002, as the same may be amended from time to time (the "Rights
Agreement"), between the Company and Mellon Investor Services LLC, a New Jersey
limited liability company, as Rights Agent (the "Rights Agent").
Initially, the Rights will be attached to all Common Stock certificates
evidencing shares then outstanding, and no separate Rights certificates will be
distributed. Until the earlier to occur of (i) ten (10) days following a public
announcement that a person or group of affiliated or associated persons has
acquired, or obtained the right to acquire, beneficial ownership of 15% or more
of the Common Shares (an "Acquiring Person") or (ii) ten (10) business days (or
such later date as may be determined by action of the Board of Directors prior
to such time as any person or group of affiliated persons becomes an Acquiring
Person) following the commencement or announcement of an intention to make a
tender offer or exchange offer the consummation of which would result in the
beneficial ownership by a person or group of 15% or more of the Common Shares
(the earlier of (i) and (ii) being called the "Distribution Date"), the Rights
will be represented, with respect to any of the Common Share certificates
outstanding as of the Record Date, by such Common Share certificate.
The Rights Agreement provides that until the Distribution Date (or earlier
redemption, exchange, termination or expiration of the Rights), the Rights will
be transferred with and only with the Common Shares. Until the Distribution Date
(or earlier redemption, exchange, termination or expiration of the Rights), new
Common Share certificates issued after the close of business on the Record Date
upon transfer or new issuance of the Common Shares will contain a notation
incorporating the Rights Agreement by reference. Until the Distribution Date (or
earlier redemption, exchange, termination or expiration of the Rights), the
surrender for transfer of any certificates for Common Shares, with or without
such notation or a copy of this Summary of Rights, will also constitute the
transfer of the Rights associated with the Common Shares represented by such
certificate. As soon as practicable following the Distribution Date, separate
certificates representing the Rights ("Right Certificates") will be mailed to
holders of record of the Common Shares as of the close of business on the
Distribution Date and such separate Right Certificates alone will represent the
Rights.
The Rights are not exercisable until the Distribution Date. The Rights will
expire on September 23, 2012 subject to the Company's right to extend such date
(the "Final Expiration Date"), unless earlier redeemed or exchanged by the
Company or terminated.
Each Preferred Share purchasable upon exercise of the Rights will be
entitled, when, as and if declared, to a minimum preferential quarterly dividend
payment of $0.01 per share but will be entitled to an aggregate dividend of 100
times the dividend, if any, declared per Common Share. In the event of
liquidation, dissolution or winding up of the Company, the holders of the
Preferred Shares will be entitled to a minimum preferential liquidation payment
of $10,000 per share (plus any accrued but unpaid dividends) but will be
entitled to an aggregate payment of 100 times the payment made per Common Share.
Each Preferred Share will have 100 votes and will vote together with the Common
Shares. Finally, in the event of any merger, consolidation or other transaction
in which Common Shares are exchanged, each Preferred Share will be entitled to
receive 100 times the amount received per Common Share. Preferred Shares will
not be redeemable. These rights are protected by customary antidilution
provisions. Because of the nature of the Preferred Share's dividend, liquidation
and voting rights, the value of one one-hundredth of a Preferred Share
purchasable upon exercise of each Right should approximate the value of one
Common Share.
The Purchase Price payable, and the number of Preferred Shares or other
securities or property issuable, upon exercise of the Rights are subject to
adjustment from time to time to prevent dilution (i) in the event of a stock
dividend on, or a subdivision, combination or reclassification of, the Preferred
Shares, (ii) upon the grant to holders of the Preferred Shares of certain rights
or warrants to subscribe for or purchase Preferred Shares or convertible
securities at less than the current market price of the Preferred Shares or
(iii) upon the distribution to holders of the Preferred Shares of evidences of
indebtedness, cash, securities or assets or of subscription rights or warrants
(other than those referred to above).
In the event that a person becomes an Acquiring Person or if the Company is
the surviving corporation in a merger with an Acquiring Person or any affiliate
or associate of an Acquiring Person and the Common Shares were not changed or
exchanged, each holder of a Right, other than Rights that are or were acquired
or beneficially owned by the Acquiring Person (which Rights will be void), will
thereafter have the right to receive, upon exercise thereof, that number of
Common Shares having a market value of two times the then-current Purchase Price
of the Right. In the event that, after a person has become an Acquiring Person,
the Company is acquired in a merger or other business combination transaction or
more than 50% of its assets or earning power are sold, proper provision shall be
made so that each holder of a Right shall thereafter have the right to receive,
upon the exercise thereof at the then-current Purchase Price of the Right, that
number of shares of common stock of the acquiring company which at the time of
such transaction would have a market value of two times the then-current
Purchase Price of the Right.
For example, at an exercise price of $35.00 per Right, each Right not owned
by an Acquiring Person (or by certain related parties) following a Trigger Event
would entitle its holder to purchase $70.00 worth of Common Stock (or other
consideration, as noted above) for $35.00. Assuming that the Common Stock had a
per share value of $10.00 at such time, the holder of each valid Right would be
entitled to purchase seven shares of Common Stock for $35.00.
At any time after a person becomes an Acquiring Person and prior to the
earlier of one of the events described in the last sentence of the previous
paragraph or the acquisition by such Acquiring Person of 50% or more of the
outstanding Common Shares, the Board of Directors may cause the Company to
exchange the Rights (other than Rights owned by an Acquiring Person, which will
be void), in whole or in part, for that number of Common Shares having an
aggregate value equal to the Spread (the excess of the value of the Common
Shares issuable upon the exercise of a Right over the Purchase Price) per Right
(subject to adjustment).
No adjustment in the Purchase Price will be required until cumulative
adjustments require an adjustment of at least 1% in the Purchase Price. No
fractional Preferred Shares or Common Shares will be issued (other than
fractions of Preferred Shares which are integral multiples of one one-hundredth
of a Preferred Share, which may, at the election of the Company, be represented
by depository receipts), and in lieu thereof, a payment in cash will be made
based on the market price of the Preferred Shares or Common Shares on the last
trading date prior to the date of exercise.
The Rights may be redeemed in whole, but not in part, at a price of $.001
per Right (the "Redemption Price") by the Board of Directors at any time prior
to the time that an Acquiring Person has become such. The redemption of the
Rights may be made effective at such time, on such basis and with such
conditions as the Board of Directors in its sole discretion may establish.
Immediately upon any redemption of the Rights, the right to exercise the Rights
will terminate and the only right of the holders of Rights will be to receive
the Redemption Price.
Until a Right is exercised, it will not entitle its holder to any rights as
a stockholder of the Company, including, without limitation, the right to vote
or to receive dividends.
Any of the provisions of the Rights Agreement may be amended by the Board
of Directors for so long as the Rights are then redeemable, and after the Rights
are no longer redeemable, the Company may amend or supplement the Rights
Agreement in any manner that does not adversely affect the interests of the
holders of the Rights.
The Rights are designed to assure that all of the Company's stockholders
receive fair and equal treatment in the event of any proposed takeover of the
Company and to guard against partial tender offers, open market accumulations
and other abusive tactics to gain control of the Company without paying all
stockholders a control premium. The Rights will cause substantial dilution to a
person or group that acquires 15% or more of the Company's stock on terms not
approved by the Company's Board of Directors. The Rights should not interfere
with any merger or other business combination approved by the Board of Directors
at any time before a person or group has become an Acquiring Person.
The Rights Agreement and the text of the press release announcing the
declaration of the Rights are incorporated herein by reference as exhibits to
this Current Report. The foregoing description of the Rights is qualified in its
entirety by reference to such exhibits.
Item 7. Financial Statements, Pro Forma Financial Statements and Exhibits.
(a) Financial Statements of Business Acquired.
Not Applicable.
(b) Pro Forma Financial Information.
Not Applicable.
(c) Exhibits.
4.1 Rights Agreement, dated as of September 11, 2002,
between BioMarin Pharmaceutical Inc., a Delaware
corporation and Mellon Investor Services LLC, a New
Jersey limited liability company as Rights Agent
(which includes the form of Certificate of
Designation, Preferences and Rights of the Series B
Junior Participating Preferred Stock of BioMarin
Pharmaceutical Inc. as Exhibit A, the form of Right
Certificate as Exhibit B and the Summary of Rights to
Purchase Preferred Shares as Exhibit C) (Incorporated
by reference to the Registrant's Registration
Statement on Form 8-A filed with the Commission on
September 12, 2002).
99 Press Release of the Registrant dated September 12,
2002
SIGNATURE
Pursuant to the requirements of the Securities and Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
BioMarin Pharmaceutical Inc.,
a Delaware corporation
Date: September 11, 2002 By: /s/ Louis Drapeau
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Louis Drapeau
Chief Financial Officer and Secretary
EXHIBIT INDEX
Exhibit No. Description
4.1 Rights Agreement, dated as of September 11, 2002,
between BioMarin Pharmaceutical Inc., a Delaware
corporation and Mellon Investor Services LLC, a New
Jersey limited liability company as Rights Agent
(which includes the form of Certificate of
Designation, Preferences and Rights of the Series B
Junior Participating Preferred Stock of BioMarin
Pharmaceutical Inc. as Exhibit A, the form of Right
Certificate as Exhibit B and the Summary of Rights to
Purchase Preferred Shares as Exhibit C) (Incorporated
by referenced to the Registrant's Registration
Statement on Form 8-A filed with the Commission on
September 12, 2002)
99 Press Release of the Registrant dated September 12,
2002
Exhibit 99
NEWS
Contacts:
Joshua Grass Fredda Malkoff
Manager, Investor and Financial Relations Account Director
BioMarin Pharmaceutical Inc. Feinstein Kean Healthcare
(415) 884-6777 (617) 577-8110
For Immediate Release:
BioMarin Adopts Stockholder Rights Plan
Novato, California, September 12, 2002 - BioMarin Pharmaceutical Inc. (Nasdaq
and SWX New Market: BMRN) today announced that its Board of Directors has
adopted a Stockholder Rights Plan.
BioMarin adopted the Plan in order to better protect stockholders and assure
that they receive the full value of their investment in the event of any
proposed takeover of the Company. BioMarin noted that the adoption of the Plan
was not in response to any specific attempt to acquire control of the Company
and that the Company has no knowledge of any such interest on the part of any
person.
Commenting on the Plan, Fredric D. Price, BioMarin's Chairman and Chief
Executive Officer, said, "It is the responsibility of our Board of Directors to
preserve and enhance stockholder value. It is not the intention of the Plan to
prevent the acquisition or takeover of the Company at some time in the future
should the Board of Directors determine that such a transaction is in the best
interest of its stockholders. Rather, the Plan is intended to help insulate the
Company from abusive takeover tactics which are designed to gain control of the
Company without paying a full, fair price to all of the stockholders."
Terms of the Plan provide for stockholders of record at the close of business on
September 23, 2002 to receive one Right for each outstanding share of common
stock held. The Rights will be exercisable if a person or group acquires 15% or
more of the Company's common stock or announces a tender offer or exchange offer
for 15% or more of the common stock. Depending on the circumstances, the effect
of the exercise of the Rights will be to permit each holder of a Right to
purchase shares of Preferred Stock of the Company that have significantly
superior dividend, liquidation, and voting rights to the common stock. The
Company will be entitled to redeem the Rights at $0.001 per Right at any time
before a person has acquired 15% or more of the outstanding common stock. The
Plan will expire on September 23, 2012.
A letter explaining in greater detail the terms of the Plan will be forwarded to
stockholders following the September 23, 2002 record date.
BioMarin specializes in the development and commercialization of therapeutic
enzyme products to treat serious, life-threatening diseases and conditions.
This press release contains forward-looking statements about the business
prospects of BioMarin Pharmaceutical Inc. These forward-looking statements are
predictions and involve risks and uncertainties such that actual results may
differ materially from these statements. Results may differ materially depending
on the progress of BioMarin's product programs, the actual results of the
current and planned clinical trials, actions of regulatory authorities,
availability of capital, future actions in the pharmaceutical market and
developments by competitors, and those factors detailed in BioMarin's filings
with the Securities and Exchange Commission such as 10-Q, 10-K and 8-K reports.
Stockholders are urged not to place undue reliance on forward-looking
statements, which speak only as of the date hereof. BioMarin is under no
obligation, and expressly disclaims any obligation, to update or alter any
forward-looking statement, whether as a result of new information, future events
or otherwise.
BioMarin's press releases and other company information are available online at
http://www.biomarinpharm.com.