<PAGE>
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
<TABLE>
<CAPTION>
=================================================================================================================================
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
<S> <C> <C> <C> <C>
- ---------------------------------------------------------------------------------------------------------------------------------
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
=================================================================================================================================
</TABLE>
(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.
================================================================================
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------------------------ ------------------------------ --------------
<S> <C> <C>
/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
</TABLE>
II-4
<PAGE>
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).
<PAGE>
EXHIBIT 4.4
GLYKO BIOMEDICAL SHARE OPTION PLAN - 1994
<PAGE>
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
<PAGE>
-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:
<PAGE>
-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:
<PAGE>
-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
-------------------------
<PAGE>
-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
<PAGE>
-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
-------------------
<PAGE>
-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
<PAGE>
-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).
<PAGE>
-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.
<PAGE>
EXHIBIT 4.5
FORM OF AGREEMENT BETWEEN GLYKO BIOMEDICAL OPTIONEES AND BIOMARIN
PHARMACEUTICAL INC.
<PAGE>
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.
<PAGE>
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.
<PAGE>
September 25, 1998
Page 3
EXHIBIT A
<TABLE>
<CAPTION>
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
- ---------------- --------- ------- ---------- -------- -------- -------- ------ --------------- -----------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
<CAPTION>
Exercise US $
Price Exercise Expiry
Per Share Price Date
----------- ---------- ----------
<C> <C> <C>
</TABLE>
<PAGE>
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
<PAGE>
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
