May 12, 2005
Via U.S. mail and facsimile 888.329.2995
Greg Smith, Esq.
Skadden, Arps, Slate, Meagher & Flom
525 University Avenue, Suite 1100
Palo Alto, CA 94301
Re: BioMarin Pharmaceutical, Inc.
Preliminary Proxy Statement on Schedule 14A
Filed May 2, 2005
File No. 0-26727
Dear Mr. Smith,
We have reviewed your filing and have the following
comments. Where indicated, we think you should revise your document
in response to these comments. If you disagree, we will consider
your explanation as to why a comment is inapplicable or a revision
is unnecessary. Please be as detailed as necessary in your
explanation. In some of our comments, we may ask you to provide us
with supplemental information so we may better understand your
disclosure. After reviewing this information, we may or may not
raise additional comments.
Please understand that the purpose of our review process is
to assist you in your compliance with the applicable disclosure
requirements and to enhance the overall disclosure in your filing.
We look forward to working with you in these respects. We welcome
any questions you may have about our comments or any other aspect
of our review. Feel free to call us at the telephone number listed
at the end of this letter.
Schedule 14A
General
1. As discussed by telephone, Edgar does not, at present, reflect
the receipt of a filing made in connection with a solicitation in
opposition. Please contact Ms. Teresa Brach in the Office of
Edgar and Information Analysis by facsimile at 202.772.9216 to
Request guidance on changing the errant PRE_14A header tag to the
appropriate PREC14A header tag. If BioMarin is successful in its
request to correct the Edgar header tag filing oversight, the next
Edgar header tag used by BioMarin on a proxy statement should be
PRER14A.
2. We note BioMarin expects to pay approximately $150,000 to
Morrow & Co. Notwithstanding this disclosure, please direct the
staff to the disclosure BioMarin has provided in its Schedule 14A to
comply with Item 4(b) of Schedule 14A, or provide comprehensive
revisions in the next amendment.
Quorum; Abstentions; Broker Non-Votes
3. Now that a solicitation in opposition has been filed on EDGAR,
advise us, with a view toward disclosure, what consideration
BioMarin has given to disclosing whether or not brokers will have
discretion to vote securities for which they have not received
instructions. In addition, to the extent brokers do retain discretion
to vote the securities they hold on behalf of beneficial holders,
advise us, with a view toward revised disclosure, what consideration
has been given to disclosing the date by when brokers must receive
instructions in order to have the votes reflect security holder
selections.
4. Please confirm that BioMarin does not reserve the right, and
otherwise does not intend, to adjourn the meeting for the purpose
of soliciting additional proxies.
Solicitation of Proxies
5. We note that proxies may be solicited by telephone, facsimile
and by email. We remind you to file, on the date of first use, all
written soliciting materials under the cover of Schedule 14A.
Refer to Rules 14a-6(b) and 14a-12. Please confirm your understanding
on a supplemental basis. Also confirm, if true, that proxies will not
be solicited via the internet, such as internet chat rooms or
postings on web sites.
6. Advise us whether not proxies may be voted by telephone. If
proxies may be voted by telephone, provide us with a legal
analysis as to whether Nasdaq rules permit the voting of proxies by
phone and, if applicable, the internet, in contested matters in which
a counter solicitation is being undertaken.
Possible Dissident Shareholder Solicitation
7. In view of the fact a solicitation in opposition has been
filed, it appears that the title to this section should be amended.
In addition, disclose the basis for the assertion that, "A change of
control will occur if at any time at least a majority of the
Company`s directors are not a majority of the existing Board or
nominated by a majority of the existing Board." For example,
revise to indicate whether or not "change of control" is expressly
defined in the indenture, and, if not, whether the representation
above is BioMarin`s interpretation based upon an opinion of counsel.
Annex A
8. Instruction 3(a)(ii) to Item 4 of Schedule 14A plainly states
that directors of the registrant are participants. Delete the "may
be deemed" language found in the opening paragraphs to this section.
Closing Comments
Please file a revised proxy statement in response to these
comments. In addition, provide a letter keying your responses to
the comments, and provide any requested supplemental information.
If you believe complying with these comments is not appropriate, tell
us why in your letter. The response letter should be uploaded to EDGAR,
with the form type label "CORRESP" and linked to the Exchange Act
file number. We may have comments after reviewing revised
materials and your responses.
We urge all persons who are responsible for the accuracy and
adequacy of the disclosure in the filing reviewed by the staff to
be certain that they have provided all information investors require
for an informed decision. Since the company and its management are in
possession of all facts relating to a company`s disclosure, they
are responsible for the accuracy and adequacy of the disclosures they
have made.
In connection with responding to our comments, please
provide, in writing, a statement from the company acknowledging that:
* the company is responsible for the adequacy and accuracy of the
disclosure in the filing;
* staff comments or changes to disclosure in response to staff
comments do not foreclose the Commission from taking any action
with respect to the filing; and
* the company may not assert staff comments as a defense in any
proceeding initiated by the Commission or any person under the
federal securities laws of the United States.
In addition, please be advised that the Division of
Enforcement has access to all information you provide to the staff
of the Division of Corporation Finance in our review of your filing
or in response to our comments on your filing. Please direct any
questions to me at 202.551.3266. You may also contact us by facsimile
at 202.772.9203. Direct all correspondence to the following ZIP
code: 20549-0303.
Sincerely,
Nicholas P. Panos
Special Counsel
Office of Mergers and Acquisitions