-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, TcESeMcSEpxrFAxap8l/HPG27BOIh9udXpSrJgCJKc1NQfH/1lv8OhJBF74J2Sf+ 4J0KpihN+vKJW71S0dKcog== 0001012870-99-002674.txt : 19990810 0001012870-99-002674.hdr.sgml : 19990810 ACCESSION NUMBER: 0001012870-99-002674 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 19990809 EFFECTIVENESS DATE: 19990809 FILER: COMPANY DATA: COMPANY CONFORMED NAME: BIOMARIN PHARMACEUTICAL INC CENTRAL INDEX KEY: 0001048477 STANDARD INDUSTRIAL CLASSIFICATION: PHARMACEUTICAL PREPARATIONS [2834] IRS NUMBER: 680397820 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-84787 FILM NUMBER: 99681349 BUSINESS ADDRESS: STREET 1: 11 PIMENTEL COURT CITY: NOVATO STATE: CA ZIP: 94949 MAIL ADDRESS: STREET 1: 11 PIMENTEL COURT STREET 2: 11 PIMENTEL COURT CITY: NOVATO STATE: CA ZIP: 94949 S-8 1 FORM S-8 As filed with the Securities and Exchange Commission on August 9, 1999 Registration No. 333- ================================================================================ 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 Number) 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) _______________ 1997 STOCK PLAN 1998 DIRECTOR OPTION PLAN 1998 EMPLOYEE STOCK PURCHASE PLAN GLYKO BIOMEDICAL SHARE OPTION PLAN - 1994 (Full title of the Plan) _______________ 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) _______________ Copies to: FRANCIS S. CURRIE, ESQ. DAN P. DILLON, ESQ. Wilson Sonsini Goodrich & Rosati Professional Corporation 650 Page Mill Road Palo Alto, California 94304 (650) 493-9300 _______________ CALCULATION OF REGISTRATION FEE
================================================================================================================================= Proposed Proposed Maximum Maximum Title of Each Class Amount Offering Aggregate Amount of of Securities to to be Price Offering Registration be Registered Registered Per Share Price Fee - --------------------------------------------------------------------------------------------------------------------------------- 1997 Stock Plan Common Stock, $0.001 par value (options reserved for future grant) 1,160,104 $11.94 (1) $13,851,641.76 $ 3,850.76 - --------------------------------------------------------------------------------------------------------------------------------- 1997 Stock Plan Common Stock, $0.001 par value (options issued and outstanding) 3,831,046 $ 5.70 (2) $21,836,962.20 $ 6,070.68 - --------------------------------------------------------------------------------------------------------------------------------- Agreements between Registrant and Certain Optionees under the Glyko Biomedical Share Option Plan - 1994 Common Stock, $0.001 par value (options issued and outstanding) 253,109 (3) $ 2.31 (2) $ 584,681.79 $ 162.54 - --------------------------------------------------------------------------------------------------------------------------------- 1998 Director Option Plan Common Stock, $0.001 par value (options reserved for future grant) 155,000 $11.94 (1) $ 1,850,700.00 $ 514.49 - --------------------------------------------------------------------------------------------------------------------------------- 1998 Director Option Plan Common Stock, $0.001 par value (options issued and outstanding) 45,000 $ 7.00 (2) $ 315,000.00 $ 87.57 - --------------------------------------------------------------------------------------------------------------------------------- 1998 Employee Stock Purchase Plan Common Stock, $0.001 par value 250,000 $11.94 (1) $ 2,985,000.00 $ 829.83 - --------------------------------------------------------------------------------------------------------------------------------- TOTAL 5,694,259 $41,423,985.75 $11,515.87 =================================================================================================================================
(1) Estimated in accordance with Rule 457(h) under the Securities Act of 1933, as amended, solely for the purpose of calculating the registration fee. The computation is based upon the average of the high and low price as reported on the NASDAQ National Market on August 2, 1999. The indicated number of shares to be registered represents additional shares issuable under the listed Plans that are not covered by prior registration statements. (2) Estimated in accordance with Rule 457(h) under the Securities Act of 1933, as amended, solely for the purpose of calculating the total registration fee. Computated based on the weighted average exercise price. (3) Certain incentive stock options outstanding under the Glyko Biomedical Share Option Plan - 1994 (the "Glyko Options") are now exercisable for shares of the Registrant's Common Stock pursuant to separate agreements between each holder of Glyko Options and Registrant. The Glyko Options were assumed by the Registrant in connection with the Registrant's acquisition of Glyko, Inc., effective October 7, 1998. ================================================================================ PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference. - ------------------------------------------------- There are hereby incorporated by reference in this Registration Statement the following documents and information heretofore filed with the Securities and Exchange Commission: (a) The Registrant's Registration Statement on Form S-1 (File No. 333-77701), filed with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the "Securities Act"), which was declared effective on July 22, 1999. (b) Not Applicable. (c) The description of the Registrant's Common Stock to be offered hereby is contained in the Registrant's Registration Statement on Form S-1 filed with the Securities and Exchange Commission on May 4, 1999 (File No. 333-77701), including any amendments or reports filed for the purpose of updating such description. All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to this registration statement, but 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 in this registration statement and to be part hereof from the date of filing such documents. Item 4. Description of Securities. -------------------------- Not applicable. Item 5. Interests of Named Experts and Counsel. --------------------------------------- Not applicable. Item 6. Indemnification of Directors and Officers. ----------------------------------------- Pursuant to Rule 411(b) of the Securities Act of 1933, as amended, we hereby incorporate by reference Part II Item 14 of the Registrant's Registration Statement on Form S-1, including all amendments thereto (File No. 333-77701), filed with the Securities and Exchange Commission on May 4, 1999. Item 7. Exemption from Registration Claimed. ----------------------------------- Not applicable. Item 8. Exhibits. -------- Exhibit Number ------ 4.1 1997 Stock Plan incorporated herein by reference to the Registrant's Registration Statement on Form S-1 (File No. 333-77701) as amended. II-1 4.2 1998 Director Option Plan incorporated herein by reference to the Registrant's Registration Statement on Form S-1 (File 333-77701) as amended. 4.3 1998 Employee Stock Purchase Plan incorporated herein by reference to the Registrant's Registration Statement on Form S-1 (File 333-77701) as amended. 4.4 Glyko Biomedical Share Option Plan - 1994, filed herewith. 4.5 Form of agreement between Glyko Biomedical Optionees and Registrant filed herewith. 5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation (Counsel to the Registrant), as to the legality of securities being registered filed herewith. 23.1 Consent of Arthur Andersen LLP filed herewith. 23.2 Consent of Wilson Sonsini Goodrich & Rosati, Professional Corporation (contained in Exhibit 5.1). 24.1 Power of Attorney (see Page II-4). Item 9. Undertakings. ------------ (a) The undersigned Registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement, 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. (2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment 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. (3) 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. (b) 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 Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the 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. (c) 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 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 II-2 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. II-3 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 Novato, State of California on August 9, 1999. BIOMARIN PHARMACEUTICAL, INC. By: /s/ Raymond W. Anderson ---------------------------- Raymond W. Anderson Vice President, Finance and Administration and Chief Financial Officer POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Grant W. Denison, Jr. and Raymond W. Anderson, jointly and severally, his attorneys-in-fact, each with the power of substitution, for him in any and all capacities, to sign any amendments to this Registration Statement on Form S-8, and to file the same, with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, hereby ratifying and confirming all that each of said attorneys-in- fact, or his substitute or substitutes, may do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities and on the date indicated.
SIGNATURE TITLE DATE - ------------------------------------------------ ------------------------------ -------------- /s/ Grant W. Denison, Jr. Chief Executive Officer, and August 9, 1999 - ----------------------------------------------- Grant W. Denison, Jr. Chairman of the Board /s/ Raymond W. Anderson Vice President, Finance and August 9, 1999 - ----------------------------------------------- Raymond W. Anderson Administration and Chief Financial Officer /s/ Ansbert S. Gadicke Director August 9, 1999 - ----------------------------------------------- Ansbert S. Gadicke /s/ Dr. John C. Klock Director August 9, 1999 - ----------------------------------------------- Dr. John C. Klock /s/ Erich Sager Director August 9, 1999 - ----------------------------------------------- Erich Sager /s/ Gwynn R. Williams Director August 9, 1999 - ----------------------------------------------- Gwynn R. Williams
II-4 BIOMARIN PHARMACEUTICAL INC. REGISTRATION STATEMENT ON FORM S-8 ---------------------------------- INDEX TO EXHIBITS Exhibit Number Description ------- ----------------------------------------- 4.1 1997 Stock Plan incorporated herein by reference to the Registrant's Registration Statement on Form S-1 (File No. 333-77701) as amended. 4.2 1998 Director Option Plan incorporated herein by reference to the Registrant's Registration Statement on Form S-1 (File 333-77701) as amended. 4.3 1998 Employee Stock Purchase Plan incorporated herein by reference to the Registrant's Registration Statement on Form S-1 (File 333-77701) as amended 4.4 Glyko Biomedical Share Option Plan - 1994, filed herewith. 4.5 Form of agreement between Glyko Biomedical Optionees and Registrant filed herewith. 5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation (Counsel to the Registrant), as to the legality of securities being registered filed herewith. 23.1 Consent of Arthur Andersen LLP filed herewith. 23.2 Consent of Wilson Sonsini Goodrich & Rosati, Professional Corporation (contained in Exhibit 5.1). 24.1 Power of Attorney (see Page II-4). EX-4.4 2 GLYKO BIOMEDICAL SHARE OPTION PLAN - 1994 EXHIBIT 4.4 GLYKO BIOMEDICAL SHARE OPTION PLAN - 1994 EXHIBIT 4.4 GLYKO BIOMEDICAL SHARE OPTION PLAN - 1994 ----------------------------------------- SECTION 1 GENERAL PROVISIONS 1.1 Interpretation -------------- For the purposes of this Plan, the following terms shall have the following meanings: (a) "Board" means the Board of Directors of the Corporation; (b) "Common Shares" means the Common Shares of the Corporation; (c) "Corporation" means Glyko Biomedical Ltd.; (d) "Consultant" means an individual (including an individual whose services are contracted through a personal holding corporation) with whom the Corporation or a subsidiary has a contract for substantial services; (e) "Eligible Person" means, subject to all applicable laws, any employee, officer or Consultant of the Corporation or any Subsidiary of the Corporation; (f) "Insider" means: (i) an insider as defined under Section 1(1) of the Securities Act (Ontario), other than a person who falls within that definition solely by virtue of being a director or senior officer of a Subsidiary, and (ii) an associate as defined under Section 1(1) of the Securities Act (Ontario) of any person who is a insider by virtue of (i) above; (g) "Option" means an option to purchase Common Shares granted to an Eligible Person pursuant to the terms of the Plan; (h) "Participant" means Eligible Persons to whom Options have been granted; (i) "Plan" means this Glyko Biomedical Share Option Plan - 1994; (j) "Share Compensation Arrangement" means any stock option, stock option plan, employee stock purchase plan or other compensation -2- or incentive mechanism involving the issuance or potential issuance of Common Shares, including a share purchase from treasury which is financially assisted by the Corporation by way of a loan, guarantee or otherwise; (k) "Subsidiary" means any company that is a subsidiary of the Corporation as defined under section 1(4) of the Securities Act (Ontario); and (l) "Termination Date" means the date on which a Participant ceases to be an Eligible Person. In this Plan, words imparting the singular number only shall include the plural and vice versa and words imparting the masculine shall include the feminine. This Plan and all matters to which reference is made herein shall be governed by and interpreted in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein. 1.2 Purpose ------- The purpose of the Plan is to advance the interests of the Corporation by: (a) providing Eligible Persons with additional incentive; (b) encouraging stock ownership by such Eligible Persons; (c) increasing the proprietary interest of Eligible Persons in the success of the Corporation; (d) encouraging Eligible Persons to remain with the Corporation or its Subsidiaries; and (e) attracting new employees and officers. 1.3 Administration -------------- (a) The Plan shall be administered by the Board or a committee of the Board duly appointed for this purpose by the Board and consisting of not less then 3 directors. If a committee is appointed for this purpose, all references herein to the Board will be deemed to be references to the Committee. (b) Subject to the limitations of the Plan, the Board shall have the authority to: -3- (i) grant options to purchase Common Shares to Eligible Persons; (ii) determine the terms, limitations, restrictions and conditions respecting such grants; (iii) interpret the Plan and adopt, amend and rescind such administrative guidelines and other rules and regulations relating to the Plan as it shall from time to time deem advisable; and (iv) make all other determinations and take all other actions in connection with the implementation and administration of the Plan including without limitation for the purpose of ensuring compliance with Section 1.8 hereof as it may deem necessary or advisable. The Board's guidelines, rules, regulations, interpretations and determinations shall be conclusive and binding upon the Corporation and all other persons. 1.4 Shares Reserved --------------- (a) The maximum number of Common Shares which may be reserved for issuance for all purposes under the Plan shall be equal to 3,000,000. The maximum number of Common Shares which may be reserved for issuance to any one person under the Plan shall be 5% of the Common Shares outstanding at the time of the grant (on a non-diluted basis) less the aggregate number of Common Shares reserved for issuance to such person under any other option to purchase Common Shares from treasury granted as a compensation or incentive mechanism. Any Common Shares subject to an Option which for any reason is cancelled or terminated without having been exercised, shall again be available for grants under the Plan. No fractional shares shall be issued and the Board may determine the manner in which fractional share values shall be treated. (b) If there is change in the outstanding Common Shares by reason of any stock dividend or split, recapitalization, amalgamation, consolidation, combination or exchange of shares, or other corporate change, the Board shall make, subject to the prior approval of the relevant stock exchange(s), appropriate substitution or adjustment in: -4- (i) the number or kind of shares or other securities reserved for issuance pursuant to the Plan; and (ii) the number and kind of shares subject to unexercised Options theretofore granted and in the option price of such shares; provided however that no substitution or adjustment shall obligate the Corporation to issue or sell fractional shares. If the Corporation is reorganized, amalgamated with another corporation, or consolidated, the Board shall make such provision for the protection of the rights of Participants as the Board in its discretion deems appropriate. 1.5 Limits with respect to Insiders ------------------------------- (a) The maximum number of Common Shares which may be reserved for issuance to Insiders under the Plan shall be 10% of the Common Shares outstanding at the time of the grant (on a non-diluted basis) less the aggregate number of Common Shares reserved for issuance to Insiders under any other Share Compensation Arrangement. (b) The maximum number of Common Shares which may be issued to Insiders under the Plan within a one year period shall be 10% of the Common Shares outstanding at the time of the issuance (on a non-diluted basis), excluding Common Shares issued under the Plan or any other Share Compensation Arrangement over the preceding one year period. The maximum number of Common Shares which may be issued to any one Insider under the Plan within a one year period shall be 5% of the Common Shares outstanding at the time of the issuance (on a non- diluted basis), excluding Common Shares issued to such Insider under the Plan or any other Share Compensation Arrangement over the preceding one year period. (c) Any entitlement to acquire Common Shares granted pursuant to the Plan or any other Share Compensation Arrangement prior to the grantee becoming an Insider shall be excluded for the purposes of the limits set out in (a) and (b) above. 1.6 Non-Exclusivity --------------- Nothing contained herein shall prevent the Board from adopting other or additional compensation arrangements, subject to any required approvals. 1.7 Amendment and Termination ------------------------- -5- (a) The Board may amend, suspend or terminate the Plan or any portion thereof at any time in accordance with applicable legislation and subject to any required approval. No such amendment, suspension or termination shall alter or impair any Options or any rights pursuant thereto granted previously to any Participant without the consent of such Participant. If the Plan is terminated, the provisions of the Plan and any administrative guidelines and other rules and regulations adopted by the Board and in force at the time of the Plan shall continue in effect during such time as an Option or any rights pursuant thereto remain outstanding. (b) With the consent of the affected Participants, the Board may amend or modify any outstanding Option in any manner to the extent that the Board would have had the authority to initially grant such award as so modified or amended, including without limitation, to change the date or dates as of which an Option becomes exercisable, subject to any required approvals. 1.8 Compliance with Legislation --------------------------- The Plan, the grant and exercise of Options hereunder and the Corporation's obligation to sell and deliver Common Shares upon exercise of Options shall be subject to all applicable federal, provincial and foreign laws, rules and regulations, the rules and regulations of any stock exchange(s) on which the Common Shares are listed for trading and to such approvals by any regulatory or governmental agency as may, in the opinion of counsel to the Corporation, be required. The Corporation shall not be obligated by any provision of the Plan or the grant of any Option hereunder to issue or sell Common Shares in violation of such laws, rules and regulations or any condition of such approvals. No Option shall be granted and no Common Shares issued or sold hereunder where such grant, issue or sale would require legislation of the Plan or of Common Shares under the securities laws of any foreign jurisdiction and any purported grant of any Option or issue or sale of Common Shares hereunder in violation of this provision shall be void. In addition, the Corporation shall have no obligation to issue any Common Shares pursuant to the Plan unless such Common Shares shall have been duly listed, upon official notice of issuance, with all stock exchanges on which the Common Shares are listed for trading. Common Shares issued and sold to Participants pursuant to the exercise of Options may be subject to limitations on sale or resale under applicable securities laws. 1.9 Effective Date -------------- The Plan shall be subject to the approval of any relevant regulatory authority whose approval is required and shall be subject to the approval of shareholders of the Corporation. Any Options granted prior to such approvals and acceptances -6- shall be conditional upon such approvals and acceptances being given and no such Options may be exercised unless such approval and acceptance is given. SECTION 2 OPTIONS 2.1 Grants ------ Subject to the provisions of the Plan, the Board shall have the authority to determine the limitations, restrictions and conditions, if any, in addition to those set forth in Section 2.3 hereof, applicable to the exercise of an Option, including without limitation, the nature and duration of the restrictions, if any, to be imposed upon the sale or other disposition of Common Shares acquired upon exercise of the Option, and the nature of the events, if any, and the duration of the period in which any Participant's rights in respect of Common Shares acquired upon exercise of an Option may be forfeited. An Eligible Person may receive Options on more than one occasion under the Plan and may receive separate Options on any one occasion. In the event that no contrary specific determination is made by the Board with respect to each Option, a Participant may take up not more than 20% of the Shares covered by the Option during each 12 month period from the date of the grant of the Option; provided, however, that if the number of Common Shares taken up under the Option during any such 12 month period is less than 20% of the Common Shares covered by the Option, the Participant shall have the right, at any time or from time to time during the remainder of the term of the Option, to purchase such number of Common Shares subject to the Option which were purchasable, but not purchased by him, during such 12 month period. 2.2 Option Price ------------ The Board shall establish the option price at the time each Option is granted, which shall in all cases be not less than the closing price of the Common Shares on The Toronto Stock Exchange on the trading day immediately preceding the date of the grant or the average of the bid and ask prices if no sales of Common Sales on The Toronto Stock Exchange were reported on the trading day immediately preceding the date of the grant. The option price shall be subject to adjustment in accordance with the provisions of Section 1.4(b) hereof. 2.3 Exercise of Options ------------------- -7- (a) Options granted must be exercised no later than 10 years after the date of grant or such lesser period as the regulations made pursuant to the Plan may require. (b) Options shall not be transferable by the Participants otherwise than by will or the laws of descent and distribution, and shall be exercisable during the lifetime of a Participant only by the Participant and after death only by the Participant's legal representative. (c) Except as otherwise determined by the Board: (i) if a Participant ceases to be an Eligible Person for any reason whatsoever other than death, each Option held by the Participant will, subject to the provisions of Section 2.3(a) hereof, cease to be exercisable 90 days after the Termination Date. If any portion of an Option is not vested by the Termination Date, that portion of the Option may not under any circumstances be exercised by the Participant. Without limitation, and for greater certainty only, this provision will apply regardless of whether the Participant was dismissed with or without cause and regardless of whether the Participant received compensation in respect of dismissal or was entitled to a period of notice of termination which would otherwise have permitted a greater portion of the Option to vest with the Participant; (ii) if a Participant dies the legal representative of the Participant may, subject to the provisions of Section 2.3(a) hereof, exercise the Participant's Options within six months after the date of the Participant's death, but only to the extent the Options were by their terms exercisable on the date of death. (d) Each Option shall be confirmed by an option agreement executed by the Corporation and by the Participant. (e) The exercise price of each Common Share purchased under an Option shall be paid in full in cash or by bank draft or certified cheque at the time of such exercise, and upon receipt of payment in full, but subject to the terms of the Plan, the number of Common Shares in respect of which the Option is exercised shall be duly issued as fully paid and non-assessable. (f) Subject to the provisions of the Plan, an Option may be exercised from time to time by delivery to the Corporation at its registered -8- office of a written notice of exercise addressed to the Secretary- Treasurer of the Corporation specifying the number of Common Shares with respect to which the Option is being exercised and accompanied by payment in full of the Option Price of the Common Shares to be purchased. Certificates for such Common Shares shall be issued and delivered to the Optionee within a reasonable period of time following the receipt of such notice and payment. (g) Notwithstanding any of the provisions contained in the Plan or in any Option, the Corporation's obligation to issue Common Shares to a Participant pursuant to the exercise of an Option shall be subject to: (i) completion of such registration or other qualification of such Common Shares or obtaining approval of such governmental or regulatory authority as counsel to the Corporation shall reasonably determine to be necessary or advisable in connection with the authorization, issuance or sale thereof; (ii) the admission of such Common Shares to listing on any stock exchange on which the Common Shares may then be listed; and (iii) the receipt from the Participant of such representations, agreements and undertakings, including as to future dealings in such Common Shares, as counsel to the Corporation reasonably determines to be necessary or advisable in order to safeguard against the violation of the laws of any jurisdiction. In this connection the Corporation shall, to the extent necessary, take all reasonable steps to obtain such approvals, registrations and qualifications as may be necessary for issuance of such Common Shares in compliance with applicable laws and for the admission to listing of such Shares on any stock exchange on which the Common Shares are then listed. SECTION 3 MISCELLANEOUS PROVISIONS 3.1 The holder of an Option shall not have any rights as a shareholder of the Corporation with respect to any of the Common Shares covered by such Option until such holder shall have exercised such Option in accordance with the terms of the Plan (including tendering payment in full of the Option Price of the Common Shares in respect of which the Option is being exercised). -9- 3.2 Nothing in the Plan or any Option shall confer upon a Participant any right to continue in the employ of the Corporation or any Subsidiary or affect in any way the right of the Corporation or any Subsidiary to terminate his employment at any time; nor shall anything in the Plan or any Option be deemed or construed to constitute an agreement, or an expression of intent, on the part of the Corporation or any Subsidiary to extend the employment of any Participant beyond the time which he would normally be retired pursuant to the provisions of any present or future retirement plan of the Corporation or any Subsidiary, or beyond the time at which he would otherwise be retired pursuant to the provisions of any contract of employment with the Corporation or any Subsidiary. EX-4.5 3 FORM OF AGREEMENT WITH GLYKO BIOMEDICAL EXHIBIT 4.5 FORM OF AGREEMENT BETWEEN GLYKO BIOMEDICAL OPTIONEES AND BIOMARIN PHARMACEUTICAL INC. EXHBIIT 4.5 BioMarin Pharmaceutical Inc. September 25, 1998 To: Certain Holders of Options to Purchase Common Stock of Glyko Biomedical Ltd. As you know, Glyko Biomedical Ltd. ("Glyko Biomedical") intends to enter into an Agreement (the "Agreement") with BioMarin Pharmaceutical Inc. ("BioMarin"), pursuant to which BioMarin will purchase all of the outstanding capital stock of Glyko, Inc. from Glyko Biomedical (the "Acquisition"). In connection with this Acquisition, BioMarin will assume your outstanding options to purchase shares of Common Stock of Glyko Biomedical ("Glyko Biomedical Options"). Such Glyko Biomedical Options shall become options to purchase shares of Common Stock of BioMarin rather than options to purchase shares of Common Stock of Glyko Biomedical. Each Glyko Biomedical Option to be assumed by BioMarin will continue to be subject to the terms and conditions, including vesting, set forth in the Glyko Biomedical Share Option Plan - 1994, except that: (i) references to the "Company" in the Glyko Biomedical Share Option Plan - 1994 will become references to BioMarin, and (ii) your Glyko Biomedical Options will become options to purchase BioMarin Common Stock, with the exercise price of and number of shares subject to your Glyko Biomedical Options adjusted as described below. Number of Shares Subject to Glyko Biomedical Options The number of shares of Common Stock of BioMarin subject to your Glyko Biomedical Options has been determined by multiplying a Conversion Ratio (as described in the next sentence) by the number of shares of Glyko Biomedical Common Stock that are issuable upon exercise of your Glyko Biomedical Options as of the date hereof, and rounding down to the nearest whole number. The Conversion Ratio equals .4367, which is the quotient of the fair market value of a share of Common Stock of Glyko Biomedical, $2.62, divided by the fair market value of a share of Common Stock of BioMarin, $6.00. September 25, 1998 Page 2 New Exercise Price of Glyko Biomedical Options The per share exercise price for shares of BioMarin Common Stock issuable upon exercise of assumed Glyko Biomedical Options has been adjusted by dividing the per share exercise price of your Glyko Biomedical Options by the Conversion Ratio. Conversion of Your Option Grant Please refer to the attached Exhibit A for details regarding the assumption --------- of your outstanding Glyko Biomedical Options by BioMarin. Acceptance of Assumption If you have questions regarding the foregoing, please do not hesitate to contact Bill Anderson at (415) 382-3538. After you have reviewed this letter, please acknowledge your agreement to the assumption of your Glyko Biomedical Options on the terms set forth herein by signing the enclosed copy of this letter and returning it to the attention of Bill Anderson in the enclosed, postage pre-paid envelope attached. Please keep a copy of this letter so that you have a complete record of all the terms and provisions applicable to your Glyko Biomedical Options as now assumed by BioMarin. Very Truly Yours, BioMarin Pharmaceutical Inc. ------------------------------------------ Bill Anderson, Chief Financial Officer Accepted and Agreed: --------------------- Print Name: ----------------------- Date: ------------------------ PLEASE RETURN SIGNED ORIGINAL TO BILL ANDERSON NO LATER THAN SEPTEMBER 30, 1998. September 25, 1998 Page 3 EXHIBIT A
Equivalent Number of Number of GBL Original 0.6658 BioMarin Shares Exercise U.S. Dollars Shares Effective Date of Subject to Price Number Number Option Subject to Name of Optionee Date Grant Options (CS) Vested Unvested Total Exercise Price Options - ---------------- --------- ------- ---------- -------- -------- -------- ------ --------------- ----------- Exercise US $ Price Exercise Expiry Per Share Price Date ----------- ---------- ----------
EX-5.1 4 OPINION OF WILSON SONSINI EXHIBIT 5.1 650 PAGE MILL ROAD PALO ALTO, CALIFORNIA 94304-1050 TELEPHONE 650-493-9300 FACSIMILE 650-493-6811 WWW.WSGR.COM August 9, 1999 BioMarin Pharmaceutical Inc. 371 Bel Marin Keys Boulevard, Suite 210 Novato, CA 94949 Re: Registration Statement on Form S-8 ---------------------------------- Ladies and Gentlemen: We have examined the Registration Statement on Form S-8 to be filed by you with the Securities and Exchange Commission on or about the date hereof (the "Registration Statement"), in connection with the registration under the Securities Act of 1933, as amended, of an aggregate of 5,694,259 shares of your Common Stock (the "Option Shares") under the 1997 Stock Plan, the 1998 Director Option Plan, the 1998 Employee Stock Purchase Plan and pursuant to the agreements between BioMarin Pharmaceutical Inc. and holders of options under the Glyko Biomedical Share Option Plan - 1994 (collectively, the "Plans"). As legal counsel to BioMarin Pharmaceutical Inc. (the "Company"), we have examined the proceedings taken and proposed to be taken in connection with the issuance, sale and payment of consideration for the Option Shares under the Plans. In addition, for the purposes of this opinion, we have assumed that the consideration received by the Company in connection with each issuance of the Option Shares will include an amount in the form of cash, services rendered or property that exceeds the greater of (i) the aggregate par value of such shares or (ii) the portion of such consideration determined by the Company's Board of Directors to be "capital" for purposes of the Delaware General Corporation Law. It is our opinion that the Option Shares, when issued and sold in the manner described in the Plans and pursuant to the agreement that accompanies each grant under the Plans will be legally and validly issued, fully paid and non-assessable. We consent to the use of this opinion as an exhibit to the Registration Statement and further consent to the use of our name wherever appearing in the Registration Statement, including any prospectus constituting a part thereof, and any amendments thereto. This opinion may be incorporated by reference in any abbreviated registration statement filed pursuant to General Instruction E of Form S-8 under the Securities Act with respect to the Registration Statement. Sincerely, WILSON SONSINI GOODRICH & ROSATI Professional Corporation /s/ Wilson Sonsini Goodrich & Rosati EX-23.1 5 CONSENT OF ARTHUR ANDERSEN LLP EXHIBIT 23.1 ------------ CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS As independent public accountants, we hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated March 17, 1999 (except for the matter discussed in Note 12 for which the date is April 13, 1999) included in BioMarin Pharmaceutical's Registration Statement on Form S-1 and to all references to our firm included in this registration statement. /s/ ARTHUR ANDERSEN L.L.P. San Francisco, California August 6, 1999 -----END PRIVACY-ENHANCED MESSAGE-----