AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 7, 2001
REGISTRATION NO. 333
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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BIOMARIN PHARMACEUTICAL INC.
(Exact name of registrant as specified in its charter)
DELAWARE 68-0397820
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
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371 BEL MARIN KEYS BOULEVARD, SUITE 210
NOVATO, CALIFORNIA 94949
(415) 884-6700
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
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RAYMOND W. ANDERSON
CHIEF FINANCIAL OFFICER
BIOMARIN PHARMACEUTICAL INC.
371 BEL MARIN KEYS BOULEVARD, SUITE 210
NOVATO, CALIFORNIA 94949
(415) 884-6700
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
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COPIES OF ALL COMMUNICATIONS, INCLUDING ALL COMMUNICATIONS SENT TO THE AGENT FOR
SERVICE, SHOULD BE SENT TO:
SIOBHAN MCBREEN BURKE, ESQ. DONALD J. MURRAY, ESQ.
PAUL, HASTINGS, JANOFSKY & WALKER LLP DEWEY BALLANTINE LLP
555 SOUTH FLOWER STREET, 23RD FLOOR 1301 AVENUE OF THE AMERICAS
LOS ANGELES, CALIFORNIA 90071-2371 NEW YORK, NEW YORK 10019-6092
(213) 683-6000 (212) 259-8000
FACSIMILE: (213) 627-0705 FACSIMILE: (212) 259-6333
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after the effective date of this Registration Statement.
If the only securities being registered on this form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box. / /
If any of the securities being registered on this form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. / /
If this form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering. /X/ Registration No. 333-73136
If this form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434 under
the Securities Act, please check the following box. / /
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CALCULATION OF REGISTRATION FEE
AMOUNT OF PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF SHARES TO BE OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED(1) SHARE PRICE REGISTRATION FEE
Common Stock, $.001 par value per share...... 1,150,000 $12.00 $13,800,000 $3,299
(1) Includes 150,000 shares subject to the underwriter's over-allotment option.
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EXPLANATORY NOTE
This Registration Statement is being filed to register an additional
1,150,000 shares of common stock, $.001 par value per share, of BioMarin
Pharmaceutical Inc., pursuant to Rule 462(b) under the Securities Act of 1933.
The contents of the Registration Statement on Form S-3 (File No. 333-73136),
which was declared effective by the Securities and Exchange Commission on
December 6, 2001, are incorporated in this Registration Statement by reference.
CERTIFICATION
BioMarin Pharmaceutical Inc. hereby certifies to the Commission that it has
instructed its bank to pay the Commission the filing fee of $3,299 for the
additional securities being registered hereby as soon as practicable (but in any
event no later than the close of business on December 7, 2001); that it will not
revoke such instructions; that it has sufficient funds in the relevant account
to cover the amount of the filing fee; and that it undertakes to confirm receipt
of such instructions by the bank by no later than December 7, 2001.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the costs and expenses to be paid by the
registrant in connection with the sale of the common stock being registered:
Securities and Exchange Commission registration fee......... $ 3,299
Legal fees and expenses..................................... $ 10,000
Accountants' fees and expenses.............................. $ 5,000
NASD filing fee............................................. $ 1,880
Printing fees............................................... $ 5,000
NASDAQ listing fee.......................................... $ -0-
Transfer agent fees......................................... $ 5,000
Miscellaneous............................................... $ 4,821
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Total....................................................... $ 35,000
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The foregoing items, except for the Securities and Exchange Commission
registration fee, are estimated.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Reference is made to the Amended and Restated Certificate of Incorporation
with the Registrant; the Bylaws of the Registrant; Section 145 of the Delaware
General Corporation Law; which, among other things, and subject to certain
conditions, authorize the Registrant to indemnify, or indemnify by their terms,
as the case may be, the directors and officers of the Registrant against certain
liabilities and expenses incurred by such persons in connection with claims made
by reason of their being such a director or officer. Pursuant to this authority,
the Registrant has entered into an indemnification agreement with each director
and executive officer, whereby the Registrant has agreed to cover the
indemnification obligations.
The Registrant maintains directors' and officers' insurance providing
indemnification against certain liabilities for certain of the Registrant's
directors, officers, affiliates, partners or employees.
The indemnification provisions in the Registrant's Bylaws, and the
indemnification agreements entered into between the Registrant and its directors
and executive officers, may be sufficiently broad to permit indemnification of
the Registrant's officers and directors for liabilities arising under the Act.
Reference is made to the following documents incorporated by reference into
this Registration Statement regarding relevant indemnification provisions
described above and elsewhere herein: (1) the Amended and Restated Certificate
of Incorporation, filed as Exhibit 3.1B to Registrant's Amendment No. 2 to
Registration Statement on Form S-1 filed with the Securities and Exchange
Commission on July 6, 1999; (2) the Registrant's Bylaws filed as Exhibit 3.1 to
Registrant's Quarterly Report on Form 10-Q for the quarter ended March 31, 2001,
and (3) the form of Indemnification Agreement entered into by the Registrant
with each of its directors and executive officers filed as Exhibit 10.1 to
Registrant's Registration Statement on Form S-1 filed with the Securities and
Exchange Commission on May 4, 1999, each incorporated by reference into this
Registration Statement.
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ITEM 16. EXHIBITS
Exhibit No. Description of Document
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1.1 Form of Underwriting Agreement (filed herewith)
5.1 Opinion of Paul, Hastings, Janofsky & Walker LLP (filed
herewith)
23.1 Consent of Paul, Hastings, Janofsky & Walker LLP (included
with Exhibit 5.1)
23.2 Consent of Arthur Andersen LLP (filed herewith)
24.1 Power of Attorney (included with signature page)
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ITEM 17. UNDERTAKINGS
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (and, when applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers, and controlling persons of the
Registrant pursuant to the provisions described in Item 15, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act of 1933, and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
The undersigned Registrant undertakes that: (1) for purpose of determining
any liability under the Securities Act of 1933, the information omitted from the
form of prospectus filed as part of the registration statement in reliance upon
Rule 430A and contained in a form of prospectus filed by the Registrant pursuant
to Rule 424(b) (1) or (4) or 497(h) under the Securities Act of 1933 shall be
deemed to be part of the registration statement as of the time it was declared
effective; and (2) for the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 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, this 7th day of December,
2001.
BIOMARIN PHARMACEUTICAL INC.
By: /s/ FREDRIC D. PRICE
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Fredric D. Price
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 Raymond W. Anderson as such
persons' true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for such person and in such person's 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 and any other regulatory
authority, granting unto said attorneys-in-fact and agents, 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 such
person might or could do in person, hereby ratifying and confirming all that
said attorneys-in-fact and agents, or such persons' substitute or substitutes,
may lawfully do or cause to be done by virtue hereof. Pursuant to the
requirements of the Securities Act of 1933, this Registration Statement on
Form S-3 has been signed by the following persons in the capacities and on the
dates indicated:
SIGNATURE TITLE DATE
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/s/ FREDRIC D. PRICE
------------------------------------------- Chairman, Chief Executive December 7, 2001
Fredric D. Price Officer and Director
(Principal Executive
Officer)
/s/ RAYMOND W. ANDERSON
------------------------------------------- Chief Financial Officer, December 7, 2001
Raymond W. Anderson Chief Operating Officer,
Secretary, and Vice
President Finance and
Administration
(Principal Financial and
Accounting Officer)
/s/ PHYLLIS I. GARDNER, M.D.
------------------------------------------- Director December 7, 2001
Phyllis I. Gardner, M.D.
/s/ ERICH SAGER
------------------------------------------- Director December 7, 2001
Erich Sager
/s/ GWYNN R. WILLIAMS
------------------------------------------- Director December 7, 2001
Gwynn R. Williams
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EXHIBIT INDEX
Exhibit No. Description of Document
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1.1 Form of Underwriting Agreement (filed herewith)
5.1 Opinion of Paul, Hastings, Janofsky & Walker LLP (filed
herewith)
23.1 Consent of Paul, Hastings, Janofsky & Walker LLP (Included
with Exhibit 5.1)
23.2 Consent of Arthur Andersen LLP (filed herewith)
24.1 Power of Attorney (included with signature page)