SecProbe.io

CORRESP
1
filename1.htm

CORRESP

 JONES DAY

3161 MICHELSON DRIVE  Ÿ  SUITE 800  Ÿ  IRVINE, CALIFORNIA 92612.4408

 TELEPHONE: +1.949.851.3939  Ÿ  FACSIMILE: +1.949.553.7539

 Direct Number: (949) 553-7509

kbespinola@jonesday.com

December 31, 2014

 VIA EDGAR AND
COURIER

 Christina Chalk

 Senior Special Counsel

Office of Mergers and Acquisitions

 U.S. Securities and Exchange
Commission

 Division of Corporate Finance

 100 F Street, N.E.

 Washington, D.C. 20549-3628

Re:
    Prosensa Holding N.V.

     Schedule TO-T filed
December 12, 2014 by BioMarin Pharmaceutical Inc. et al.

     File No. 005-87624

Dear Ms. Chalk:

 On behalf of our clients,
BioMarin Pharmaceutical Inc., BioMarin Falcons B.V. and BioMarin Giants B.V. (collectively, the “Filers”), set forth below are the responses of the Filers to the comment letter from the Staff of the Securities and Exchange Commission (the
“Staff”), dated December 22, 2014, concerning the Schedule TO-T (the “Schedule TO-T”), filed on December 12, 2014 (File No. 005-87624), under the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), by the Filers.

 The responses contained herein are based on information provided to Jones Day by the Filers. To facilitate the
Staff’s review, we have included in this letter the headings and numbered comments in bold text and have provided the Filers’ response immediately following each of the numbered comments.

The Filers are submitting, via EDGAR, Amendment No. 2 to the Schedule TO-T (the “Schedule TO-T/A”) containing changes made in
response to the Staff’s comments, copies of which are enclosed herewith. Capitalized terms used but not defined in this letter have the meanings given to them in the Schedule TO-T.

Schedule TO

1.
 Please revise to use the current version of Schedule TO, which includes a box to check indicating reliance on the cross-border exemption for
third-party tender offers. See Rule 14d-1(d). If you are relying on Rule 14d-1(d), please check the

 ALKHOBAR  Ÿ  AMSTERDAM  Ÿ  ATLANTA  •  BEIJING  •  BOSTON  •  BRUSSELS  •  CHICAGO  •
CLEVELAND  •  COLUMBUS  •  DALLAS

DUBAI  •  DÜSSELDORF  •  FRANKFURT  •  HONG KONG  Ÿ  HOUSTON  Ÿ  IRVINE  Ÿ  JEDDAH  Ÿ  LONDON  Ÿ  LOS ANGELES  Ÿ  MADRID

MEXICO
CITY  Ÿ  MIAMI
Ÿ  MILAN  Ÿ  MOSCOW  Ÿ  MUNICH  Ÿ  NEW YORK  Ÿ  PARIS  Ÿ  PERTH  Ÿ  PITTSBURGH  Ÿ  RIYADH  Ÿ  SAN DIEGO

SAN
FRANCISCO  Ÿ  SÃO PAULO  Ÿ  SHANGHAI  Ÿ  SILICON VALLEY  Ÿ  SINGAPORE  Ÿ  SYDNEY  Ÿ  TAIPEI  Ÿ  TOKYO  Ÿ  WASHINGTON

 December 31, 2014

  Page
 2

box and describe in your response letter the facts that you believe support your reliance on the exemption.

Pursuant to the Staff’s request, the Schedule TO-T/A includes the boxes to indicate reliance on exemptions for cross-border tender offers.
The Filers are not relying on such exemptions and, as such, have not checked the boxes.

 Exhibit (a)(1)(A) - Offer to Purchase

General

2.
You have not registered the issuance of the CVRs in connection with this tender Offer. In your response letter, please provide your analysis as to why the issuance of the CVRs in this Offer is not a registerable
event under Section 5 of the Securities Act of 1933. Please cite to applicable precedent, including staff no-action letters, and analyze the relevant features of these CVRs that relate to their status as securities.

We do not believe that the contractual contingent value rights (the “CVRs”) as described in the Offer to Purchase are registerable
because it is our view that they are not “securities” under the Securities Act of 1933 (the “Securities Act”), and treating the CVRs as securities would be inconsistent with the position consistently taken by the Staff in
no-action letters under which the Staff has not recommended enforcement action in connection with the issuance, without registration, of contingent deferred payment rights bearing the same essential characteristics as the CVRs.

Pursuant to the CVR Agreement, the CVRs will give former holders of Shares the contractual right to receive cash payments of up to $4.14 per
Share in the aggregate upon the achievement of the product approval milestones described in the Offer to Purchase included in the Schedule TO-T.

The Staff has consistently taken the position that it would not recommend enforcement action if, in connection with a proposed merger or tender
offer, contingent deferred payment rights, having the same essential characteristics as the CVRs, were not registered under the Securities Act. The Staff has noted the following factors when granting such no-action relief:

(i)
the rights are an integral part of the consideration to be received in the merger or tender offer and will be granted pro-rata;

(ii)
the rights do not represent any ownership or equity interest and do not carry voting or dividend rights or bear a stated rate of interest;

(iii)
the rights are non-transferable, except by operation of law or by will or intestacy;

 December 31, 2014

  Page
 3

(iv)
the rights will not be evidenced by any form of certificate or instrument; and

(v)
any amount ultimately paid to the selling stockholders does not depend on the operating results of the surviving company or any constituent company to the merger.

(See, e.g., Lorimar, Inc. (November 4, 1985); Slater Development Corporation (April 7, 1988); Essex Communications Corp. (June
28, 1988); Minnesota Mining and Manufacturing Company (October 13, 1988); First Boston, Inc. (December 2, 1988); GID/TL, Inc. (March 21, 1989); Genentech Clinical Partners III (April 28, 1989); Quanex Corporation (July 28, 1989); Marriott Residence
Inn Limited Partnership (February 20, 2002) and Marriott Residence Inn Limited Partnership II (May 8, 2002).)

 These criteria are
well-established and have been relied on in recent transactions involving contractual contingent payment rights that were not registered under the Securities Act, including contingent payment rights payable upon achievement of regulatory approval
similar to those that determine payment under the CVRs. Several recent examples include:

•

Forest Laboratories, Inc.’s 2013 acquisition of Furiex Pharmaceuticals, Inc., in which Forest Laboratories agreed to pay for each share of Furiex Pharmaceuticals, $95 plus one non-transferable contingent value
right to receive up to an additional $30 per share, payable upon the achievement of certain regulatory milestones related to FDA approval of new drug applications.

•

Echo Pharma Acquisition Limited’s, 2013 tender offer for all of outstanding shares of Elan Corporation, plc., in which Echo Pharma Acquisition Limited agreed to pay, for each share of Elan Corporation, $13 plus one
non-transferable contingent value right, which entitled the holder to receive up to an additional $2.50 per share, payable upon the achievement of certain regulatory and commercial milestones. The first contingent payment was payable upon FDA
approval of certain additions to the label for Elan Corporation’s Tysabri product. The second and third contingent payments were payable if the worldwide net sales of Tysabri for certain periods were in excess of certain net sales thresholds.

•

Forest Laboratories, Inc.’s 2011 tender offer for all of the outstanding shares of Clinical Data, Inc., in which Forest Laboratories agreed to pay, for each share of Clinical Data, $30 plus a non-transferable
contingent value right that entitled the holder thereof to up to $6.00 per share if the aggregate net sales of Viibryd and other products containing vilazadone hydrochloride exceeded certain net sales thresholds.

 December 31, 2014

  Page
 4

•

ViroPharma Inc.’s October 2008 acquisition of Lev Pharmaceuticals, in which ViroPharma agreed to pay for each share of Lev Pharmaceuticals stock an upfront cash payment, a fraction of a share of ViroPharma common
stock and a non-transferable contingent value right entitling the holder to receive up to two contingent payments in cash, payable upon the achievement of certain regulatory and commercial milestones. The first contingent payment was payable upon
approval by the FDA of Lev’s Cinryze product and the second contingent payment was payable when Cinryze reached at least $600 million in cumulative net product sales within a specified time period.

•

Endo Pharmaceuticals Holdings Inc.’s March 2009 acquisition of Indevus Pharmaceuticals, Inc., in which the merger consideration included an upfront cash payment and a non-transferable contingent right to receive up
to an additional $3.00 per share for certain milestones relating to a given product, Nebido. The first contingent payment was payable upon FDA approval of the product, with the amount of payment depending on whether the product was subject to a
“boxed warning” label. The full amount of this payment would be payable either upon FDA approval without the boxed warning label, or if the product was subject to a boxed warning label, upon achievement of a specified sales target for the
product. The second contingent payment will become payable if an additional specified product is approved by the FDA within a given time period.

The CVRs described in the Offer to Purchase have the same five essential characteristics the Staff has identified in the no-action letters
cited above and were present in the transactions described above:

•

The CVRs are an integral part of the consideration to be received by tendering shareholders of Prosensa in the Offer because they will be issued in partial consideration of the Shares at the same time as the Cash
Consideration is paid. Additionally, as discussed in Section 8 of the Offer to Purchase, the addition of CVRs to the consideration payable in the transaction allowed Parent to increase the price it was willing to pay to tendering holders of the
Shares, because the Filers will only be obligated to pay cash in respect of the CVRs if Parent or its affiliates are successful in achieving applicable product approval milestones. The CVRs will be granted pro rata to each tendering shareholder of
Prosensa (see pages i-vi, x-xi, 1-3, 13-15, 27-30 and 45-49 of the Offer to Purchase);

•

The CVRs will not represent any ownership interest in BioMarin Falcons B.V., Parent or their subsidiaries and will not have any voting, liquidation or dividend rights, nor will the CVRs bear any interest (see pages iv
and 46 of the Offer to Purchase);

 December 31, 2014

  Page
 5

•

The CVRs will not be assignable or transferable except (1) upon death by will or intestacy or by instrument to an inter vivos or testamentary trust in which the CVRs are to be passed to beneficiaries upon the death
of the trustee, (2) pursuant to a court order, (3) by operation of law (including a consolidation or merger) or without consideration in connection with the dissolution, liquidation or termination of any corporation, limited liability
company, partnership or other entity, (4) in the case of CVRs payable to a nominee, from a nominee to a beneficial owner (and, if applicable, through an intermediary) or from such nominee to another nominee for the same beneficial owner, in
each case as allowable by the Depository Trust Company, (5) to Parent, BioMarin Falcons or their affiliates, or (6) upon abandonment by the holder. (see page 46 of the Offer to Purchase);

•

The CVRs will not be evidenced by any certificate or other instrument (see page 46 of the Offer to Purchase); and

•

The CVRs represent only the contractual right to receive the contingent payments described above, and accordingly, any payment obligations to CVR holders depend only on receipt of the applicable regulatory approval, not
the operating results of BioMarin or Prosensa (see pages 45-46 of the Offer to Purchase).

 On the basis of the foregoing, we
respectfully submit that the CVRs are not “securities” within the meaning of the Securities Act and, accordingly, registration of the CVRs under the Securities Act is not required.

3.
Please advise how you are complying with the prompt payment requirements of Rule 14e-1(c) in connection with the issuance of the CVRs. In this regard, tell us whether, under applicable law of the Netherlands, the
rights that tendering Prosensa security holders receive are enforceable as of the close of the tender Offer. We may have further comments.

The Filers believe that the Offer satisfies the prompt payment rule set forth in Rule 14e-1(c). The consideration to be received by a tendering
shareholder of Prosensa will be cash and CVRs, and, as disclosed on page 8 of the Offer to Purchase under the heading, “Acceptance for Payment and Payment of Shares,” Purchaser will pay for all Shares validly tendered and not
withdrawn following the acceptance of Shares pursuant to the Offer by prompt payment of cash and the CVRs. Each CVR represents the immediate contractual right to receive up to an additional $4.14 in cash payments upon the occurrence of the product
approval milestones described on page 1 of the Offer to Purchase (each a “Milestone”). Accordingly, the component of consideration represented by the CVRs will in fact be paid in compliance with the prompt payment rule because the CVRs are
not a deferred cash payment to shareholders of Prosensa, but rather the contractual right to

 December 31, 2014

  Page
 6

receive additional cash payments if and only if product approval Milestones are achieved in accordance with the terms of the CVR Agreement, and the CVRs will be delivered concurrently with the
Cash Consideration. With respect to the CVR, the consideration is not the cash itself that might be paid in the future, but instead the right to receive the Milestone payments in cash if and only if the Milestones are achieved. As such, the payment
of the Offer Price is complete at the time a tendering shareholder of Prosensa receives the Cash Consideration and the CVR.

 On numerous
occasions, the Staff has either granted no action relief or did not object to the payment of consideration in a tender offer that included the contractual right to receive an additional payment at a future point in time upon the occurrence of a
specified event. For example, in Boston Scientific’s tender offer to acquire all outstanding shares of common stock of Rubicon Medical Corporation, Boston Scientific agreed to pay an “Additional Payment” to tendering shareholders if
certain milestones related to FDA approval of a medical device and net sales of certain products were achieved, with no further action required on the part of the holders. In response to a similar SEC comment, Boston Scientific responded that,
“the component of consideration represented by the Additional Payments will in fact be paid in compliance with the prompt payment rule, because the consideration is not the cash itself that might be paid in the future, but instead the right to
receive the Additional Payments in cash if and only if certain milestones are achieved. Tendering shareholders will obtain the right to receive the Additional Payments precisely at the same time as the cash component of the consideration is paid to
the stockholder in compliance with Rule 14e-1(c).” Boston Scientific subsequently accepted for payment, and paid for, shares of Rubicon in the tender offer, and the consideration paid included the contractual right to receive the Additional
Payments in the event the applicable milestones were achieved. The CVRs that are a component of the consideration in the Offer are substantially similar to the Additional Payments offered by Boston Scientific in its tender offer for Rubicon Medical
Corporation. Like the right to receive Additional Payments, the CVRs are the right to receive cash if and only if a Milestone is achieved, with no further action required on the part of the CVR holders. The CVRs will be obtained by tendering
shareholders of Prosensa at the same time as the Cash Consideration is paid to such shareholders, as noted on page 1 of the Offer to Purchase. Accordingly, we share the view expressed by