Post-effective Amendment to an S-8 Filing (s-8 Pos)
June 13 2017 - 4:57PM
Edgar (US Regulatory)
As filed with the Securities and Exchange Commission on June 13, 2017
Registration No. 333-206094
Registration No. 333-136963
Registration No. 333-168552
Registration No. 333-188620
UNITED STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington, D.C. 20549
Post-Effective Amendment No. 1 to Registration Statement on Form S-8 (Registration No. 333-206094)
Post-Effective Amendment No. 1 to Registration Statement on Form S-8 (Registration No. 333-136963)
Post-Effective Amendment No. 1 to Registration Statement on Form S-8 (Registration No. 333-168552)
Post-Effective Amendment No. 1 to Registration Statement on Form S-8 (Registration No. 333-188620)
FORM S-8
REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF 1933
BIOMARIN
PHARMACEUTICAL INC.
(Exact name of registrant as specified in its charter)
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Delaware
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68-0397820
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(State or other jurisdiction of
Incorporation or organization)
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(I.R.S. Employer
Identification No.)
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770 Lindaro Street
San Rafael, CA 94901
(Address of principal executive offices) (Zip code)
BioMarin Pharmaceutical Inc. Amended and Restated 2006 Share Incentive Plan
BioMarin Pharmaceutical Inc. 2017 Equity Incentive Plan
(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.
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Large accelerated
filer ☒
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Accelerated filer ☐
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Non-accelerated
filer ☐ (Do not check if a smaller reporting company)
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Smaller reporting company ☐
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Emerging growth company ☐
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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. ☐
EXPLANATORY NOTE
BioMarin Pharmaceutical Inc. (the “Registrant”) hereby amends its registration statements on Form S-8 (File Nos.
333-206094, 333-136963, 333-168552 and 333-188620) (collectively, the “Registration Statements”) by filing this Post-Effective Amendment No. 1 to such Registration Statements to reflect that the BioMarin Pharmaceutical
Inc. Amended and Restated 2006 Share Incentive Plan (the “2006 Plan”) was replaced by the BioMarin Pharmaceutical Inc. 2017 Equity Incentive Plan (the “2017 Plan”).
On June 6, 2017 (the “Effective Date”), BioMarin’s stockholders approved the 2017 Plan, which is a successor to and
continuation of the 2006 Plan. No additional awards will be granted under the 2006 Plan. The maximum number of shares of BioMarin’s common stock that may be issued pursuant to the 2017 Plan will not exceed 20,880,015, which number is the sum of
(i) 5,250,000 new shares, plus (ii) 15,630,015 shares that either were (x) subject to the 2006 Plan’s available reserve as of the Effective Date or (y) subject to outstanding stock awards granted under the 2006 Plan as of
the Effective Date that subsequently (A) expire or terminate for any reason prior to exercise or settlement, or (B) are forfeited because of the failure to meet a contingency or condition required to vest such shares ((x) and
(y) together, the “Carryover Shares”).
Accordingly, pursuant to the undertaking in Item 512(a)(1)(iii) of Regulation
S-K that the Registrant disclose a material change in the plan of distribution as originally disclosed in the Registration Statements, the Registrant is filing this Post-Effective Amendment No. 1 to the Registration Statements to reflect that,
as of the Effective Date, the Carryover Shares may be issued under the 2017 Plan and to file as an exhibit hereto a copy of the 2017 Plan. This Post-Effective Amendment No. 1 to the Registration Statements amends and supplements the
items listed below. All other items of the Registration Statement are incorporated herein by reference without change.
Contemporaneously
with the filing of this Post-Effective Amendment No. 1 to the Registration Statements, the Registrant is filing a Registration Statement on Form S-8 to register 5,250,000 shares of Common Stock authorized for issuance pursuant to the 2017 Plan,
which amount excludes the Carryover Shares. No additional shares of Common Stock are being registered by this Post-Effective Amendment No. 1 to the Registration Statements.
PART II
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ITEM 3.
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INCORPORATION OF DOCUMENTS BY REFERENCE
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The following documents (File No. 000-26727)
filed by the Registrant with the Securities and Exchange Commission (the “Commission”) are incorporated by reference into this Registration Statement:
(a)
The Registrant’s Annual Report on Form
10-K
for the fiscal year
ended December 31, 2016, filed with the Commission on February 27, 2017;
(b)
The information
specifically incorporated by reference into the Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2016 from the Registrant’s definitive proxy statement on Schedule 14A, filed with the Commission on
April 25, 2017;
(c)
The Registrant’s Quarterly Report on Form 10-Q for the fiscal quarter ended
March 31, 2017, filed with the Commission on May 4, 2017;
(d)
The Registrant’s Current
Reports on Form
8-K
filed with the Commission on April 13, 2017 and June 12, 2017; and
(e)
The description of the Registrant’s Common Stock which is
contained in the Registrant’s Registration Statement on Form 8-A filed with the Commission on July 15, 1999, including all amendments and reports filed for the purpose of updating such description.
All reports and other documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”) (other than Current Reports furnished under Item 2.02 or Item 7.01 of Form 8-K and exhibits furnished on such form that relate to such items) on or after the date of this
Registration Statement and prior to the filing of a
post-effective
amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference herein and to be a part of this Registration Statement from the date of the filing of such reports and documents. Any statement contained in a document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any subsequently filed document that also is deemed to be incorporated by reference herein modifies
or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
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ITEM 4.
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DESCRIPTION OF SECURITIES
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Not applicable.
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ITEM 5.
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INTERESTS OF NAMED EXPERTS AND COUNSEL
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None.
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ITEM 6.
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INDEMNIFICATION OF DIRECTORS AND OFFICERS
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Under Section 145 of the Delaware
General Corporation Law the Registrant has broad powers to indemnify its directors and officers against liabilities they may incur in such capacities, including liabilities under the Securities Act of 1933, as amended (the “Securities
Act”). The Registrant’s Restated Certificate of Incorporation provides that the Registrant must indemnify its directors to the fullest extent under applicable law. Pursuant to Delaware law, this includes elimination of liability for
monetary damages for breach of the directors’ fiduciary duty of care to the Registrant and its stockholders. However, the Registrant’s directors may be personally liable for liability for any breach of duty of loyalty to the Registrant or
to its stockholders; acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law; unlawful payment of dividends or unlawful stock repurchases or redemptions under Section 174 of the Delaware General
Corporation Law; or any transaction from which the director derived an improper personal benefit. In addition, the Registrant’s Amended and Restated Bylaws provide that: the Registrant is required to indemnify its directors and officers to the
fullest extent not prohibited by Delaware law or any other applicable law, subject to limited exceptions; the Registrant may indemnify its other employees and agents as set forth in Delaware law or any other applicable law; the Registrant is
required to advance expenses to its directors and officers as incurred in connection with legal proceedings against them for which they may be indemnified; and the rights conferred in the Amended and Restated Bylaws are not exclusive.
The Registrant has entered into indemnification agreements with each of its directors and executive officers. These agreements, among other
things, require the Registrant to indemnify each director and officer to the fullest extent permitted by Delaware law, including indemnification for expenses such as attorneys’ fees, judgments, fines and settlement amounts incurred by the
director or officer in any action or proceeding, including any action by or in the right of the Registrant, arising out of the person’s services as a director or officer of the Registrant, any subsidiary of the Registrant or any other company
or enterprise to which the person provides services at the Registrant’s request. Such indemnification agreements contain provisions which are in some respects broader than the specific indemnification provisions contained in Delaware law. The
Registrant also maintains directors’ and officers’ insurance providing indemnification against certain liabilities for certain of its directors, officers, affiliates, partners and employees.
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ITEM 7.
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EXEMPTION FROM REGISTRATION CLAIMED
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Not applicable.
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Exhibit
Number
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Description
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4.1
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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.
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4.2
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Amended and Restated Bylaws of BioMarin Pharmaceutical Inc., previously filed with the Commission on June 15, 2015 as Exhibit 3.1 to the Registrant’s Current Report on Form 8-K (File No. 000-26727), which is incorporated
herein by reference.
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4.3
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Indenture dated as of March 29, 2006, between BioMarin Pharmaceutical Inc. and Wilmington Trust Company, previously filed with the Commission on March 29, 2006 as Exhibit 4.1 to the Registrant’s Current Report on Form 8-K
(File No. 000-26727), which is incorporated herein by reference.
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4.4
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Second Supplemental Indenture, dated as of April 23, 2007, between BioMarin Pharmaceutical Inc. and Wilmington Trust Company, previously filed with the Commission on April 23, 2007 as Exhibit 4.1 to the Registrant’s Current
Report on Form 8-K (File No. 000-26727), which is incorporated herein by reference.
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4.5
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Indenture, dated as of October 15, 2013, between BioMarin Pharmaceutical Inc. and Wilmington Trust, National Association, previously filed with the Commission on October 15, 2013 as Exhibit 4.1 to the Registrant’s Current
Report on Form 8-K (File No. 000-26727), which is incorporated herein by reference.
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4.6
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First Supplemental Indenture, dated as of October 15, 2013, between BioMarin Pharmaceutical Inc. and Wilmington Trust, National Association, previously filed with the Commission on October 15, 2013 as Exhibit 4.2 to the
Registrant’s Current Report on Form 8-K (File No. 000-26727), which is incorporated herein by reference.
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4.7
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Second Supplemental Indenture, dated as of October 15, 2013, between BioMarin Pharmaceutical Inc. and Wilmington Trust, National Association, previously filed with the Commission on October 15, 2013 as Exhibit 4.3 to the
Registrant’s Current Report on Form 8-K (File No. 000-26727), which is incorporated herein by reference.
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4.8
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Form of 0.75% Senior Subordinated Convertible Notes due 2018, previously filed with the Commission on October 15, 2013 as included in Exhibit 4.2 to the Registrant’s Current Report on Form 8-K (File No. 000-26727), which is
incorporated herein by reference.
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4.9
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Form of 1.50% Senior Subordinated Convertible Notes due 2020, previously filed with the Commission on October 15, 2013 as included in Exhibit 4.3 to the Registrant’s Current Report on Form 8-K (File No. 000-26727), which is
incorporated herein by reference.
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5.1*
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Opinion of Cooley LLP.
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5.2**
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Opinion of Paul Hastings LLP (filed with the Form S-8 with Registration No. 333-206094)
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5.3**
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Opinion of Paul Hastings LLP (filed with the Form S-8 with Registration No. 333-188620)
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5.4**
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Opinion of Paul, Hastings, Janofsky & Walker LLP (filed with the Form S-8 with Registration No. 333-168552)
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5.5**
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Opinion of Paul, Hastings, Janofsky & Walker LLP (filed with the Form S-8 with Registration No. 333-136963)
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23.1*
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Consent of KPMG LLP, independent registered public accounting firm.
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23.2*
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Consent of Cooley (included in Exhibit 5.1 to this Amendment No. 1 to Registration Statements on Form S-8).
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24.1*
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Power of Attorney (included on the signature page of this Amendment No. 1 to Registration Statements on Form S-8)
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99.1
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BioMarin Pharmaceutical Inc. 2017 Equity Incentive Plan, previously filed with the Commission on June 12, 2017 as Exhibit 10.1 to the Registrant’s Current Report on Form 8-K (File No. 000-26727), which is incorporated herein
by reference.
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99.2
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BioMarin Pharmaceutical Inc. Amended and Restated 2006 Share Incentive Plan, previously filed with the Commission on June 15, 2015 as Exhibit 10.1 to the Registrant’s Current Report on Form 8-K (File No. 000-26727),
which is incorporated herein by reference.
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99.3
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BioMarin Pharmaceutical Inc. Amended and Restated 2006 Employee Stock Purchase Plan, previously filed with the Commission on June 10, 2014 as Exhibit 10.1 to the Registrant’s Current Report on Form 8-K (File No.
000-26727), which is incorporated herein by reference.
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1.
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The undersigned registrant hereby undertakes:
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(a)
To
file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i)
To include any prospectus required by Section 10(a)(3) of the Securities Act;
(ii)
To reflect in the prospectus any facts or events arising after the effective date of the registration
statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration
Fee” table in the effective registration statement;
(iii)
To include any material information with
respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;
Provided, however,
that paragraphs (a)(i) and (a)(ii) do not apply if the information required to be
included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference
in the registration statement.
(b)
That, for the purpose of determining any liability under the Securities
Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c)
To remove from registration by means of a post-effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
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2.
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The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the registrant’s annual report pursuant to Section 13(a) or
Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the Registration Statement shall be
deemed to be a new registration statement relating to the securities offered herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
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3.
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Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, 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 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 and will be governed by the final adjudication of such issue.
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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 Post-Effective Amendment No. 1 to the Registration Statements to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of San Rafael, State of California, on June 13, 2017.
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BIOMARIN PHARMACEUTICAL INC.
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By:
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/s/ Daniel Spiegelman
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Daniel Spiegelman
Executive Vice
President and Chief Financial Officer
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POWER OF ATTORNEY
K
NOW
A
LL
P
ERSONS
B
Y
T
HESE
P
RESENTS
, 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 Post-Effective Amendment No. 1 to the Registration
Statements and any and all amendments (including post-effective amendments) to the underlying registration statements on Form S-8 (File Nos. 333-206094, 333-136963, 333-168552 and 333-188620), 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 Post-Effective Amendment
No. 1 to the Registration Statements has been signed by the following persons in the capacities and on the dates indicated.
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Signature
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Title
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Date
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/s/ Jean-Jacques Bienaimé
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Chairman and Chief Executive Officer
(
Principal Executive Officer
)
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June 13, 2017
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Jean-Jacques Bienaimé
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/s/ Daniel Spiegelman
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Executive Vice President and Chief Financial Officer
(
Principal Financial Officer
)
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June 13, 2017
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Daniel Spiegelman
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/s/ Brian R. Mueller
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Senior Vice President, Corporate Controller and Chief
Accounting Officer
(
Principal
Accounting Officer
)
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June 13, 2017
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Brian R. Mueller
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Director
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June , 2017
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Willard Dere, M.D.
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/s/ Michael Grey
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Director
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June 13, 2017
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Michael Grey
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/s/ Elaine J. Heron
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Director
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June 13, 2017
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Elaine J. Heron, Ph.D.
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/s/ V. Bryan Lawlis
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Director
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June 13, 2017
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V. Bryan Lawlis, Ph.D.
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Director
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June , 2017
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Alan J. Lewis, Ph.D.
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Lead Independent Director
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June , 2017
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Richard A. Meier
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/s/ David Pyott
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Director
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June 13, 2017
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David Pyott
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/s/ Dennis J. Slamon
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Director
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June 12, 2017
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Dennis J. Slamon, M.D., Ph.D.
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EXHIBIT INDEX
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Exhibit
Number
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Description
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4.1
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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.
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4.2
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Amended and Restated Bylaws of BioMarin Pharmaceutical Inc., previously filed with the Commission on June 15, 2015 as Exhibit 3.1 to the Registrant’s Current Report on Form 8-K (File No. 000-26727), which is incorporated
herein by reference.
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4.3
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Indenture dated as of March 29, 2006, between BioMarin Pharmaceutical Inc. and Wilmington Trust Company, previously filed with the Commission on March 29, 2006 as Exhibit 4.1 to the Registrant’s Current Report on Form 8-K
(File No. 000-26727), which is incorporated herein by reference.
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4.4
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Second Supplemental Indenture, dated as of April 23, 2007, between BioMarin Pharmaceutical Inc. and Wilmington Trust Company, previously filed with the Commission on April 23, 2007 as Exhibit 4.1 to the Registrant’s Current
Report on Form 8-K (File No. 000-26727), which is incorporated herein by reference.
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4.5
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Indenture, dated as of October 15, 2013, between BioMarin Pharmaceutical Inc. and Wilmington Trust, National Association, previously filed with the Commission on October 15, 2013 as Exhibit 4.1 to the Registrant’s Current
Report on Form 8-K (File No. 000-26727), which is incorporated herein by reference.
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4.6
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First Supplemental Indenture, dated as of October 15, 2013, between BioMarin Pharmaceutical Inc. and Wilmington Trust, National Association, previously filed with the Commission on October 15, 2013 as Exhibit 4.2 to the
Registrant’s Current Report on Form 8-K (File No. 000-26727), which is incorporated herein by reference.
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4.7
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Second Supplemental Indenture, dated as of October 15, 2013, between BioMarin Pharmaceutical Inc. and Wilmington Trust, National Association, previously filed with the Commission on October 15, 2013 as Exhibit 4.3 to the
Registrant’s Current Report on Form 8-K (File No. 000-26727), which is incorporated herein by reference.
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4.8
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Form of 0.75% Senior Subordinated Convertible Notes due 2018, previously filed with the Commission on October 15, 2013 as included in Exhibit 4.2 to the Registrant’s Current Report on Form 8-K (File No. 000-26727), which is
incorporated herein by reference.
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4.9
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Form of 1.50% Senior Subordinated Convertible Notes due 2020, previously filed with the Commission on October 15, 2013 as included in Exhibit 4.3 to the Registrant’s Current Report on Form 8-K (File No. 000-26727), which is
incorporated herein by reference.
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5.1*
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Opinion of Cooley LLP.
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5.2**
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Opinion of Paul Hastings LLP (filed with the Form S-8 with Registration No. 333-206094)
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5.3**
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Opinion of Paul Hastings LLP (filed with the Form S-8 with Registration No. 333-188620)
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5.4**
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Opinion of Paul, Hastings, Janofsky & Walker LLP (filed with the Form S-8 with Registration No. 333-168552)
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5.5**
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Opinion of Paul, Hastings, Janofsky & Walker LLP (filed with the Form S-8 with Registration No. 333-136963)
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23.1*
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Consent of KPMG LLP, independent registered public accounting firm.
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23.2*
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Consent of Cooley (included in Exhibit 5.1 to this Amendment No. 1 to Registration Statements on Form S-8).
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24.1*
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Power of Attorney (included on the signature page of this Amendment No. 1 to Registration Statements on Form S-8)
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99.1
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BioMarin Pharmaceutical Inc. 2017 Equity Incentive Plan, previously filed with the Commission on June 12, 2017 as Exhibit 10.1 to the Registrant’s Current Report on Form 8-K (File No. 000-26727), which is incorporated herein
by reference.
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99.2
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BioMarin Pharmaceutical Inc. Amended and Restated 2006 Share Incentive Plan, previously filed with the Commission on June 15, 2015 as Exhibit 10.1 to the Registrant’s Current Report on Form 8-K (File No. 000-26727),
which is incorporated herein by reference.
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99.3
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BioMarin Pharmaceutical Inc. Amended and Restated 2006 Employee Stock Purchase Plan, previously filed with the Commission on June 10, 2014 as Exhibit 10.1 to the Registrant’s Current Report on Form 8-K (File No.
000-26727), which is incorporated herein by reference.
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BioMarin Pharmaceutical (NASDAQ:BMRN)
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