Biomarin Pharmaceutical Inc. et al - MRRS Decision
Headnote
MutualReliance Review System for Exemptive Relief Applications - reliefgranted from the registration and prospectus requirements fortrades in connection with an arrangement between a Canadian non-reportingissuer, and a US issuer reporting under the 1934 Act in the UnitedStatesApplicableOntario Statutory Provisions
SecuritiesAct, R.S.O. 1990, c.S.5, as am., 25, 53, 72(5), 74(1), 75, 77,78, 79, 80(b)(iii), 81, 85, 86, 88(2), 107, 108, 109 and 121(2).RegulationsCited
Regulationmade under the Securities Act, R.R.O. 1990, Reg. 1015, as am.,ApplicableOntario Rules
Rule45-501 - Exempt Distributions.INTHE MATTER OF
THESECURITIES LEGISLATION OF
BRITISHCOLUMBIA AND ONTARIO
AND
INTHE MATTER OF
THEMUTUAL RELIANCE REVIEW SYSTEM
FOREXEMPTIVE RELIEF APPLICATIONS
AND
INTHE MATTER OF
BIOMARINPHARMACEUTICAL INC., BIOMARIN HOLDINGS
(NOVASCOTIA) COMPANY, BIOMARIN DELIVERY CANADA INC.
ANDSYNAPSE TECHNOLOGIES INC.
MRRSDECISION DOCUMENT
WHEREASthe local securities regulatory authority or regulator (the"Decision Maker") in each of British Columbia and Ontario (the"Jurisdictions") has received an application from BioMarin PharmaceuticalInc. ("BioMarin"), BioMarin Holdings (Nova Scotia) Company ("BioMarinNova Scotia"), BioMarin Delivery Canada Inc. ("BioMarin Subco")and Synapse Technologies Inc. ("Synapse") (collectively, the"Filer") for a decision under the securities legislation ofthe Jurisdictions (the "Legislation") that the requirementscontained in the Legislation to be registered to trade in asecurity and to file a preliminary prospectus and a prospectusand receive receipts therefor prior to distributing a security(the "Registration and Prospectus Requirements") shall not applyto certain trades of securities in connection with the proposedplan of arrangement (the "Arrangement") whereby BioMarin Subco,an indirect wholly-owned subsidiary of BioMarin, will acquireall of the issued and outstanding securities of Synapse (the"Transaction") pursuant to a second amended and restated agreementfor plan of arrangement (the "Arrangement Agreement") made asof February 4, 2002, between BioMarin, BioMarin Subco and Synapse;
ANDWHEREAS under the Mutual Reliance Review System for ExemptiveRelief Applications (the "System"), the British Columbia SecuritiesCommission is the principal regulator for this application; AND WHEREASthe Filer has represented to the Decision Makers that: 1. BioMarin's principalexecutive office is in Novato, California; 2. BioMarin's authorizedcapital is (i) 1,000,000 shares of preferred stock, par value$0.001 per share, and (ii) 75,000,000 shares of common stock,US$0.001 par value (the "BioMarin Common Shares"); as of February15, 2002, there were no shares of preferred stock and 52,442,902BioMarin Common Shares issued and outstanding; 3. the BioMarin CommonShares trade on the Nasdaq National Market and the SWX Swiss Exchange;BioMarin will apply, as required, to the Nasdaq National Marketand the SWX Swiss Exchange to list the additional BioMarin CommonShares issuable in connection with the Transaction; 4. BioMarin is currentlysubject to the reporting requirements of the United StatesSecurities Exchange Act of 1934, and is not a reporting issuerin any province or territory of Canada, will not become a reportingissuer by virtue of the Transaction and does not intend to becomea reporting issuer in any province or territory of Canada afterthe completion of the Transaction; 5. BioMarin Nova Scotiais an indirect wholly-owned subsidiary of BioMarin which was incorporatedunder the laws of Nova Scotia on December 21, 2001; BioMarin NovaScotia's only material asset upon completion of the Transactionwill be the issued and outstanding common shares of BioMarin Subco; 6. BioMarin Subco isa direct subsidiary of BioMarin Nova Scotia and an indirect subsidiaryof BioMarin and was incorporated under the laws of Canada on February4, 2002; 7. BioMarin Subco wasincorporated to acquire all of the common shares of Synapse (the"Synapse Common Shares") and all of the preferred shares, Series1 of Synapse (the "Synapse Preferred Shares") under the Arrangement; 8. Synapse was formedto license technology from the University of British Columbiaand has its principal executive office in Vancouver, British Columbia; 9. Synapse's authorizedshare capital is an unlimited number of Synapse Common Sharesand an unlimited number of preferred shares issuable in series,of which 2,000,000 Synapse Preferred Shares are authorized; asat February 20, 2002, there were 10,849,222 Synapse Common Sharesand 1,252,666 Synapse Preferred Shares outstanding; at the anticipatedcompletion date of the Transaction (the "Effective Time"), therewill be 11,177,859 Synapse Common Shares, 1,252,666 Synapse PreferredShares, 1,000,324 vested Synapse options (the "Synapse Options")and 359,854 Synapse warrants (the "Synapse Warrants") outstanding; 10. Synapse is nota reporting issuer in any province or territory of Canada andthe securities of Synapse do not trade on any stock exchange; 11. under the ArrangementAgreement, BioMarin Subco will acquire all of the outstandingSynapse Common Shares and Synapse Preferred Shares in exchangefor BioMarin Common Shares and class A preferred shares of BioMarinSubco (the "Exchangeable Shares"); the Arrangement will take placeunder the Canada Business Corporations Act; in accordancewith the provisions of the Canada Business Corporations Act,Synapse will make an application to the Supreme Court of BritishColumbia (the "Court") and all matters relating to the Arrangementwill be subject to the orders of the Court; 12. on March 12, 2002,a special meeting (the "Meeting") of the holders of Synapse CommonShares and Synapse Preferred Shares (together, the "Shareholders")will be held in accordance with the interim order of the Courtgranted February 14, 2002; at the Meeting, the Shareholders willbe asked, among other things, to pass a special resolution approvingthe Arrangement; 13. in connection withthe Meeting, Synapse mailed to each Shareholder on February 18,2002 (i) a notice of Meeting, (ii) a form of proxy, (iii) thetext of the special resolution approving the Arrangement, and(iv) an information circular containing prospectus-level disclosureregarding the Transaction, BioMarin, each Shareholder's dissentrights, the Arrangement and the characteristics of the BioMarinCommon Shares and the Exchangeable Shares; 14. under the termsof the Arrangement, at the Effective Time: (a) each outstandingSynapse Common Share held by a Shareholder (other than SynapseCommon Shares held by a Shareholder who exercises its dissentrights) will be transferred to BioMarin Subco in considerationfor BioMarin Common Shares in accordance with the applicable exchangeratio and one Exchangeable Share; (b) each outstandingSynapse Preferred Share held by a Shareholder (other than SynapsePreferred Shares held by a Shareholder who exercises its dissentrights) will be transferred to BioMarin Subco in considerationfor BioMarin Common Shares in accordance with the applicable exchangeratios and one Exchangeable Share; (c) each Synapse Optionwill be exchanged for an option (the "BioMarin Options") to purchaseBioMarin Common Shares in accordance with the applicable exchangeratio; (d) each Synapse Warrantwill be exchanged for a warrant (the "BioMarin Warrants") to purchaseBioMarin Common Shares in accordance with the applicable exchangeratio; and (e) all of the issuedand outstanding Synapse Common Shares and Synapse Preferred Sharesheld by BioMarin Subco will be transferred to BioMarin PharmaceuticalDelivery Nova Scotia Company, an unlimited liability company incorporatedunder the Companies Act (Nova Scotia) and an indirectwholly-owned subsidiary of BioMarin, in consideration for oneSeries A preferred share and a non-interest bearing demand promissorynote in the amount of $15,914,751; 15. each ExchangeableShare will be subject to redemption either automatically by BioMarinSubco, or upon the occurrence of certain triggering events, orby BioMarin Nova Scotia upon exercise of the Redemption Call Right(as hereinafter defined) over the Exchangeable Shares; the redemptionprice or redemption call price will be payable in cash or in BioMarinCommon Shares, at BioMarin's sole discretion; 16. in connection withthe Transaction, BioMarin will enter into a support agreement(the "Support Agreement") to enable or permit each of BioMarinNova Scotia and BioMarin Subco to perform its obligations withrespect to redemption of the Exchangeable Shares; 17. the ExchangeableShares are non-voting and the holders of Exchangeable Shares arenot entitled to receive any dividend payable by BioMarin Subcoand are not entitled to participate in any distribution of theassets or property of BioMarin Subco; 18. the ExchangeableShares are not exchangeable at the option of the holders, butwill be redeemable by BioMarin Subco on the earlier of: (i) thedate which is 10 years from the Effective Date, and (ii) the dateon which the sum of the Redemption Prices (as hereinafter defined)paid by BioMarin Subco and the Redemption Call Purchase Prices(as hereinafter defined) paid by BioMarin Nova Scotia is not lessthan $8,000,000 (the "Automatic Redemption Date") for an amountper share equal to $0.0001 (the "Automatic Redemption Price");subject to the Redemption Call Right of BioMarin Nova Scotia,BioMarin Subco will, on the date (the "Redemption Date") whichis 30 days following the date of certain specified triggeringevents, redeem a certain specified portion of the then outstandingExchangeable Shares for the amounts (in each case, a "RedemptionPrice") equal to the lesser of: (i) $8,000,000 less the sum ofall Redemption Prices and Redemption Call Purchase Prices payableby BioMarin Subco and BioMarin Nova Scotia, respectively, priorto such triggering events, and (ii) a specified amount correspondingto such triggering event; 19. payment of theAutomatic Redemption Price or the Redemption Price, as the casemay be, for such Exchangeable Shares will be made by (i) a chequein the amount of such holder's proportionate part of the AutomaticRedemption Price or the Redemption Price, as the case may be,or (ii) certificates representing that number of BioMarin CommonShares equal to the amount of the proportionate part of the AutomaticRedemption Price or Redemption Price payable to such holder dividedby the Current Market Price (as defined in the provisions attachingto the Exchangeable Shares) on the Automatic Redemption Date orthe Redemption Date, as the case may be, registered in the nameof the holder; 20. BioMarin Nova Scotiawill have the overriding right (the "Redemption Call Right"),notwithstanding the proposed redemption of Exchangeable Sharesby BioMarin Subco, to purchase from all of the holders of ExchangeableShares (other than any holder of Exchangeable Shares which isan affiliate of BioMarin) to be redeemed on a Redemption Date,all of the Exchangeable Shares held by each such holder to beredeemed on such date on payment by BioMarin Nova Scotia to theholders of an amount equal to the Redemption Price (the "RedemptionCall Purchase Price"); in the event of the exercise of the RedemptionCall Right by BioMarin Nova Scotia, each holder will be obligatedto sell all the Exchangeable Shares held by the holder to be redeemedto BioMarin Subco on such Redemption Date on payment by BioMarinNova Scotia to such holder of the holder's proportionate partof the Redemption Call Purchase Price; 21. for the purposesof completing the purchase of Exchangeable Shares under the RedemptionCall Right, BioMarin Nova Scotia will deposit with BioMarin Subco,on or before the Redemption Date at BioMarin Nova Scotia's soleelection, either (i) a cheque in the amount of the RedemptionCall Purchase Price, or (ii) certificates representing the aggregatenumber of BioMarin Common Shares equal to the total RedemptionCall Purchase Price divided by the Current Market Price on theRedemption Date; such consideration will be delivered to the holderof Exchangeable Shares by BioMarin Subco on behalf of BioMarinNova Scotia; 22. the steps underthe Transaction and the attributes of the Exchangeable Sharesinvolve or may involve a number of trades or possible trades ofsecurities (collectively, the "Trades"); there may be no registrationand prospectus exemptions available under the Legislation forcertain of the Trades; 23. the fundamentalinvestment decision to be made by a Shareholder is made at thetime of the Meeting, when such holder votes in favour of the specialresolution approving the Arrangement; as a result of this decision,a holder receives BioMarin Common Shares and Exchangeable Sharesin exchange for its Synapse Common Shares and Synapse PreferredShares, all subsequent exchanges are in furtherance of the holder'sinitial investment decision to acquire BioMarin Common Sharesand Exchangeable Shares on the closing of the Transaction; 24. immediately afterthe Effective Time, approximately 53,328,176 BioMarin Common Shareswill be issued and outstanding and will be held by approximately2,069 stockholders; of such shares, 12,623,636 (23.7%) will beheld by 41 (1.98%) Canadian residents; of the shares held by Canadianresidents, 11,367,617 (90.05%) will be held by Glyko BiomedicalLtd. ("Glyko") and 364,000 (2.88%) will be held by IBEX TechnologiesInc., current stockholders of BioMarin; 25. BioMarin has announcedthat it has signed a definitive agreement to acquire all of theissued and outstanding shares of Glyko in consideration for 11,367,617BioMarin Common Shares to be delivered to the shareholders ofGlyko; subsequent to the transaction with Glyko and followingthe Effective Time, 1,494,739 (1.98%) of the issued and outstandingBioMarin Common Shares will be held by 208 (8.61%) Canadian residents; ANDWHEREAS under the System, this MRRS Decision Document evidencesthe decision of each Decision Maker (collectively, the "Decision"); ANDWHEREAS each of the Decision Makers is satisfied that thetest contained in the Legislation that provides the Decision Makerwith the jurisdiction to make the Decision has been met; THEDECISION of the Decision Makers under the Legislation is theRegistration and Prospectus Requirements shall not apply to theTrades provided that the first trade in BioMarin Common Sharesacquired under the Transaction shall be a distribution under theLegislation unless such trade is executed through the facilitiesof a stock exchange or market outside of Canada or to a personor Company outside Canada. March19, 2002. "BrendaLeong"