As filed with the Securities and Exchange Commission on October 16, 2019

Registration No. 333-            

 

 

 

UNITED STATES

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

Incorporation or organization)

 

(I.R.S. Employer

Identification No.)

 

 

770 Lindaro Street

San Rafael, CA 94901

(Address of principal executive offices) (Zip code)

 

 

BioMarin Pharmaceutical Inc. 2017 Equity Incentive Plan, as Amended April 12, 2019

BioMarin Pharmaceutical Inc. Amended and Restated 2006 Employee Stock Purchase Plan, as Amended and

Restated April 12, 2019

(Full title of the plan)

 

 

G. Eric Davis

Executive Vice President, General Counsel

BioMarin Pharmaceutical Inc.

770 Lindaro Street

San Rafael, California 94901

(415) 506-6700

(Name and address of agent for service) (Telephone number, including area code, of agent for service)

 

 

Copies to:

Jodie M. Bourdet

Siana E. Lowrey

Cooley LLP

101 California Street

5th Floor

San Francisco, CA 94111-5800

(415) 693-2000

 

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.

 

Large accelerated filer   ☒    Accelerated filer   ☐
Non-accelerated filer   ☐    Smaller reporting company   ☐
Emerging growth company   ☐     

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act.   ☐

 

CALCULATION OF REGISTRATION FEE

 

 

Title of Securities

to be Registered

 

Amount

to be
Registered (1)

  Proposed
Maximum
Offering Price
per Share (4) 		 

Proposed
Maximum
Aggregate

Offering Price (4)

 

Amount of

Registration Fee

2017 Equity Incentive Plan, as Amended April 12, 2019

Common Stock, par value $0.001 per share

  11,000,000 shares (2)    $65.11   $716,210,000.00   $92,964.06

Amended and Restated 2006 Employee Stock Purchase Plan, as Amended and Restated April 12, 2019

Common Stock, par value $0.001 per share

  3,500,000 shares (3)   $65.11   $227,885,000.00   $29,579.47

Total

  14,500,000 shares       $944,095,000.00   $122,543.53

 

 

(1)

Pursuant to Rule 416(a), this Registration Statement shall also cover any additional shares of the Registrant’s common stock, par value $0.001 per share (the “Common Stock”) that become issuable under the plan by reason of any stock dividend, stock split, recapitalization or other similar transaction effected that increases the number of outstanding shares of Common Stock.

(2)

Represents additional shares of the Registrant’s Common Stock reserved for future issuance under the Registrant’s 2017 Equity Incentive Plan, as Amended April 12, 2019.

(3)

Represents additional shares of the Registrant’s Common Stock reserved for future issuance under the Registrant’s Amended and Restated 2006 Employee Stock Purchase Plan, as Amended and Restated April 12, 2019.

(4)

Estimated solely for the purpose of calculating the amount of the registration fee pursuant to Rule 457(h) and Rule 457(c). The price per share and aggregate offering price are based upon the average of the high ($65.57) and low ($64.64) prices of the Registrant’s Common Stock on October 9, 2019 as reported on the Nasdaq Global Select Market.

 

 

 

EXPLANATORY NOTE

On June 4, 2019, the Registrant’s stockholders approved (i) an amendment to the BioMarin Pharmaceutical Inc. 2017 Equity Incentive Plan (the “2017 Plan”) to increase the number of shares of Common Stock reserved for issuance under the 2017 Plan by 11,000,000 shares and (ii) amendments to the BioMarin Pharmaceutical Inc. Amended and Restated 2006 Employee Stock Purchase Plan (the “Purchase Plan”) to, among other items, increase the number of shares of Common Stock reserved for issuance under the Purchase Plan by 3,500,000 shares. Accordingly, this Registration Statement is being filed with the Commission to register an additional 11,000,000 shares of Common Stock for future issuance under the 2017 Plan and an additional 3,500,000 shares of Common Stock for future issuance under the Purchase Plan.

With respect to the 2017 Plan, these additional shares of Registrant’s Common Stock are securities of the same class as other securities for which an original Registration Statement on Form S-8 was filed with the Securities and Exchange Commission (the “Commission”) on June  13, 2017 (File No. 333-218695). With respect to the Purchase Plan, these additional shares of Registrant’s Common Stock are securities of the same class as other securities for which an original Registration Statement on Form S-8 was filed with the Commission August  29, 2006 (File No. 333-136963) and a subsequent Registration Statement on Form S-8 was filed with the Commission on July 31, 2014 (File No.  333-197759).

Pursuant to General Instruction E to Form S-8, this Registration Statement hereby incorporates by reference the contents of such prior Registration Statements.

PART II

 

ITEM 8.

EXHIBITS

 

Exhibit

Number

    
  4.1    Restated Certificate of Incorporation of BioMarin Pharmaceutical Inc., previously filed with the Commission on June  12, 2017 as Exhibit 3.2 to the Registrant’s Current Report on Form 8-K (File No. 000-26727), which is incorporated herein by reference.
  4.2    Amended and Restated Bylaws of BioMarin Pharmaceutical Inc., previously filed with the SEC on September  24, 2018 as Exhibit 3.1 to the Company’s Current Report on Form 8-K (File No. 000-26727), which is incorporated herein by reference.
  5.1*    Opinion of Cooley LLP.
23.1*    Consent of KPMG LLP, independent registered public accounting firm.
23.2*    Consent of Cooley (included in Exhibit 5.1 to this Registration Statement on Form S-8).
24.1*    Power of Attorney (included on the signature page of this Registration Statement on Form S-8).
99.1    BioMarin Pharmaceutical Inc. 2017 Equity Incentive Plan, as amended April  12, 2019, previously filed with the Commission on August 2, 2019 as Exhibit 10.3 to the Registrant’s Quarterly Report on Form 10-Q (File No.  000-26727), which is incorporated herein by reference.
99.2    BioMarin Pharmaceutical Inc. Amended and Restated 2006 Employee Stock Purchase Plan, as amended and restated April  12, 2019, previously filed with the Commission on August 2, 2019 as Exhibit 10.2 to the Registrant’s Quarterly Report on Form 10-Q (File No.  000-26727), which is incorporated herein by reference.

 

*

Filed herewith

SIGNATURES

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 San Rafael, State of California, on October 16, 2019.

 

BIOMARIN PHARMACEUTICAL INC.
By:  

/s/ Daniel Spiegelman

Daniel Spiegelman

Executive Vice President and Chief Financial Officer

POWER OF ATTORNEY

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Jean-Jacques Bienaimé and Daniel Spiegelman, and each or any one of them, his true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him and in his 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 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 substitutes or substitute, may lawfully do or cause to be done by virtue hereof.

Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.

 

Signature    Title   Date

/s/ Jean-Jacques Bienaimé

Jean-Jacques Bienaimé

  

Chairman and Chief Executive Officer

(Principal Executive Officer)

  October 16, 2019

/s/ Daniel Spiegelman

Daniel Spiegelman

  

Executive Vice President and Chief Financial

Officer

(Principal Financial Officer)

  October 16, 2019

/s/ Brian R. Mueller

Brian R. Mueller

  

Senior Vice President, Corporate Controller and

Chief Accounting Officer

(Principal Accounting Officer)

  October 16, 2019

/s/ Elizabeth Anderson

Elizabeth Anderson

   Director   October 16, 2019

/s/ Willard H. Dere

Willard H. Dere

   Director   October 16, 2019

/s/ Michael G. Grey

Michael G. Grey

   Director   October 16, 2019

/s/ Elaine J. Heron

Elaine J. Heron

   Director   October 16, 2019

/s/ Robert J. Hombach

Robert J. Hombach

   Director   October 16, 2019

/s/ V. Bryan Lawlis

V. Bryan Lawlis

   Director   October 16, 2019

/s/ Alan J. Lewis

Alan J. Lewis

   Director   October 16, 2019

/s/ Richard A. Meier

Richard A. Meier

   Lead Independent Director   October 16, 2019

/s/ David Pyott

David Pyott

   Director   October 16, 2019

/s/ Dennis J. Slamon

Dennis J. Slamon

   Director   October 16, 2019

Exhibit 5.1

 

LOGO

Jodie M. Bourdet

+1 415 693 2054

jbourdet@cooley.com

October 16, 2019

BioMarin Pharmaceutical Inc.

770 Lindaro Street

San Rafael, California 94901

Ladies and Gentlemen:

We have acted as counsel to BioMarin Pharmaceutical Inc., a Delaware corporation (the “Company”), and you have requested our opinion in connection with the filing of a registration statement on Form S-8 (the “Registration Statement”) with the Securities and Exchange Commission covering the offering of up to 14,500,000 shares of the Company’s Common Stock, par value $0.001 per share, including (a) 11,000,000 shares of Common Stock (the “EIP Shares”) pursuant to the Company’s 2017 Equity Incentive Plan, as amended (the “EIP”) and (b) 3,500,000 shares of Common Stock (together with the EIP Shares, the “Shares”) pursuant to the Company’s Amended and Restated 2006 Employee Stock Purchase Plan, as amended (together with the EIP, the “Plans”).

In connection with this opinion, we have examined and relied upon (a) the Registration Statement and related prospectuses, (b) the Plans, (c) the Company’s Restated Certificate of Incorporation and Bylaws, each as currently in effect, and (d) such other documents, records, certificates, memoranda and other instruments as in our judgment are necessary or appropriate to enable us to render the opinion expressed below. We have assumed the genuineness and authenticity of all documents submitted to us as originals and the conformity to originals of all documents submitted to us as copies thereof. As to certain factual matters, we have relied upon a certificate of an officer of the Company and have not sought independently to verify such matters.

Our opinion is expressed only with respect to the General Corporation Law of the State of Delaware. We express no opinion to the extent that any other laws are applicable to the subject matter hereof and express no opinion and provide no assurance as to compliance with any federal or state securities law, rule or regulation.

On the basis of the foregoing, and in reliance thereon, we are of the opinion that the Shares, when sold and issued in accordance with the respective Plans and the Registration Statement and related prospectuses, will be validly issued, fully paid, and nonassessable (except as to shares issued pursuant to certain deferred payment arrangements, which will be fully paid and nonassessable when such deferred payments are made in full).

We consent to the filing of this opinion as an exhibit to the Registration Statement.

Sincerely,

COOLEY LLP

 

By:  

/s/ Jodie M. Bourdet

      Jodie M. Bourdet

 

Cooley LLP  101 California Street  5th Floor  San Francisco, CA  94111-5800

t: (415) 693-2000  f: (415) 693-2222   cooley.com

Exhibit 23.1

Consent of Independent Registered Public Accounting Firm

The Board of Directors

BioMarin Pharmaceutical Inc.:

We consent to the use of our reports dated February 27, 2019 with respect to the consolidated balance sheets of BioMarin Pharmaceutical Inc. and subsidiaries as of December 31, 2018 and 2017 and the related consolidated statements of operations, comprehensive loss, stockholders’ equity and cash flows for each of the years in the three-year period ended December 31, 2018, and the effectiveness of internal control over financial reporting as of December 31, 2018, incorporated by reference herein. Our report refers to a change in the method of accounting for revenue due to the adoption of Accounting Standards Codification 606, Revenue from Contracts with Customers.

/s/ KPMG LLP

San Francisco, California

October 16, 2019