SEC Comment Letter for BIOMARIN PHARMACEUTICAL INC (BMRN) (CIK 0001048477) (BMRN) — Sep 28, 2010
BIOMARIN PHARMACEUTICAL INC (BMRN) (CIK 0001048477)
Date: Sept. 28, 2010 · CIK: 0001048477 · Accession: 0000000000-10-057017
AI Filing Summary & Sentiment
File numbers found in text: 000-26727
Letter
September 28, 2010 Jeffrey H. Cooper Senior Vice President, Chief Financial Officer BioMarin Pharmaceutical Inc. 105 Digital Drive Novato, CA 94949 Re: BioMarin Pharmaceutical Inc. Form 10-K for the Fiscal Year Ended December 31, 2009 Filed February 26, 2010 Proxy Statement on Schedule 14A Filed March 26, 2010 File Number: 000-26727
Dear Mr. Cooper: We have reviewed your August 13, 2010 respon se to our July 30, 2010 letter and have the following comments. In our comments, we as k you to provide us with information to better understand your disclosure. Please respond to this letter within te n business days by providing the requested information or by advising us when you will provid e the requested response. Please furnish us a letter on EDGAR under the form type label CORRESP that keys your responses to our comments.
After reviewing the information provided, we may raise additional comments and/or request that you amend your filings. Form 10-K for the fiscal year ended December 31, 2009
Commercial Products, page 3
1. We note your response to our prior comment 2. To the extent you continue to describe your exclusive license agreement with Asubio Ph arma Co., Ltd. and list the agreement as an exhibit in future filings, we ask that you in clude all material information regarding the agreement including the total potential milestone payments to be made and a more narrow range of royalties within a te n percent range. Please confirm your understanding that this information should be included in future disclosure.
Jeffrey H. Cooper BioMarin Pharmaceutical Inc. September 28, 2010 Page 2
Consolidated Financial Statements Notes to Consolidated Financial Statements
Note 11. Convertible Debt, page F-30
2. Please refer to your response to prior comment five. It appears under Section 4.07(a)(3) of the First Supplement Indenture dated March 29, 2006 that if you issue any rights or warrants to all or substantially all holders of your outstanding Common Stock entitling them to subscribe for or purchase shar es of Common Stock (or securi ties convertible into Common Stock) at a price per share (or having a Conve rsion Price per share) less than the Current Market Price per share of Common Stock, the Conversion Rate in e ffect immediately prior thereto shall be increased based on the terms in the agreement. Please tell us how you determined that this embedded conversion feature was indexed to your own stock and therefore not an embedded derivative requiring separate liability classification under ASC 815-40-15. Definitive Proxy Statement on Schedule 14A
Compensation Discussion and Analysis Cash Bonus, page 34
3. We note your response to our prior comment 8 and your analysis as to why you believe disclosure of your 2009 corporate goals would ca use competitive harm to the company. We disagree with your conclusion as it relates to the Net Operating Income and product specific sales goals. We also believe that disclosure of your non-financial goals in general terms would not cause competitive harm to the compa ny. Therefore, please confirm that to the extent the company has analogous goals for th e 2010 fiscal year you will disclose such information in the Compensation Discussion and Analysis section of your next annual filing.
You may contact Dana Hartz, Staff Accountant, at (202) 551 -3648 or Don Abbott, Senior Staff Accountant, at (202) 551-3608 if you have a ny questions regarding the processing of your response as well as any questions regarding co mments on the financial statements and related matters. You may contact Laura Cr otty, Staff Attorne y, at (202) 551-3563 with questions on any of the other comments. In this regard, do not hesitate to contact me, at (202) 551-3679.
Sincerely,
Jim B. Rosenberg
Senior Assistant Chief Accountant
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September 28, 2010 Jeffrey H. Cooper Senior Vice President, Chief Financial Officer BioMarin Pharmaceutical Inc. 105 Digital Drive Novato, CA 94949 Re: BioMarin Pharmaceutical Inc. Form 10-K for the Fiscal Year Ended December 31, 2009 Filed February 26, 2010 Proxy Statement on Schedule 14A Filed March 26, 2010 File Number: 000-26727 Dear Mr. Cooper: We have reviewed your August 13, 2010 respon se to our July 30, 2010 letter and have the following comments. In our comments, we as k you to provide us with information to better understand your disclosure. Please respond to this letter within te n business days by providing the requested information or by advising us when you will provid e the requested response. Please furnish us a letter on EDGAR under the form type label CORRESP that keys your responses to our comments. After reviewing the information provided, we may raise additional comments and/or request that you amend your filings. Form 10-K for the fiscal year ended December 31, 2009 Commercial Products, page 3 1. We note your response to our prior comment 2. To the extent you continue to describe your exclusive license agreement with Asubio Ph arma Co., Ltd. and list the agreement as an exhibit in future filings, we ask that you in clude all material information regarding the agreement including the total potential milestone payments to be made and a more narrow range of royalties within a te n percent range. Please confirm your understanding that this information should be included in future disclosure. Jeffrey H. Cooper BioMarin Pharmaceutical Inc. September 28, 2010 Page 2 Consolidated Financial Statements Notes to Consolidated Financial Statements Note 11. Convertible Debt, page F-30 2. Please refer to your response to prior comment five. It appears under Section 4.07(a)(3) of the First Supplement Indenture dated March 29, 2006 that if you issue any rights or warrants to all or substantially all holders of your outstanding Common Stock entitling them to subscribe for or purchase shar es of Common Stock (or securi ties convertible into Common Stock) at a price per share (or having a Conve rsion Price per share) less than the Current Market Price per share of Common Stock, the Conversion Rate in e ffect immediately prior thereto shall be increased based on the terms in the agreement. Please tell us how you determined that this embedded conversion feature was indexed to your own stock and therefore not an embedded derivative requiring separate liability classification under ASC 815-40-15. Definitive Proxy Statement on Schedule 14A Compensation Discussion and Analysis Cash Bonus, page 34 3. We note your response to our prior comment 8 and your analysis as to why you believe disclosure of your 2009 corporate goals would ca use competitive harm to the company. We disagree with your conclusion as it relates to the Net Operating Income and product specific sales goals. We also believe that disclosure of your non-financial goals in general terms would not cause competitive harm to the compa ny. Therefore, please confirm that to the extent the company has analogous goals for th e 2010 fiscal year you will disclose such information in the Compensation Discussion and Analysis section of your next annual filing. You may contact Dana Hartz, Staff Accountant, at (202) 551 -3648 or Don Abbott, Senior Staff Accountant, at (202) 551-3608 if you have a ny questions regarding the processing of your response as well as any questions regarding co mments on the financial statements and related matters. You may contact Laura Cr otty, Staff Attorne y, at (202) 551-3563 with questions on any of the other comments. In this regard, do not hesitate to contact me, at (202) 551-3679. Sincerely, Jim B. Rosenberg Senior Assistant Chief Accountant