Re: | Amicus Therapeutics, Inc. Registration Statement on Form S-3 Filed April 3, 2009 File No. 333-158405 |
1. | We note that there are outstanding comments on your December 31, 2007 Form 10-K. Please note that we will not be in a position to accelerate the effectiveness of your registration statement until all comments on your Form 10-K have been cleared. |
On behalf of the Company, we respectfully submit that on April 21, 2009, the Company was informed by the Staff that it had no further comments to the Companys Form 10-K for the fiscal year December 31, 2007. |
2. | We note that the Form 10-K for the Fiscal Year Ended December 31, 2008 incorporates by reference the Part III information which will be provided in your proxy statement. Please note we will not be in a position to make your filing effective until this information is filed. You may amend your Form 10-K to include this information, or wait until after your proxy statement has been filed to request acceleration. |
On behalf of the Company, we respectfully submit that the Company filed its definitive proxy statement with the Commission on April 24, 2009. This proxy statement contains the information required to be included in Part III of the Companys Form 10-K for the fiscal year ended December 31, 2008. Part III of the Companys Form 10-K for the fiscal year ended December 31, 2008 incorporates this proxy statement by reference. |
3. | In your table disclosing calculation of registration fees please separately identify the shares being registered for the secondary offering. |
In response to the Staffs comment, the Company respectfully submits that at the time of filing the Registration Statement the Company is relying upon Rule 430B(b) with respect to the shares being registered for the secondary offering, as further set forth below in our response to the next comment. Therefore, at this time the Company is unable to separately identify the shares being registered for the secondary offering. As disclosed in the Calculation of the Registration Fee table, the total proposed maximum offering price for both the primary offering by the Company, together with any secondary offering by existing selling stockholders, will in no event exceed $100,000,000 in the aggregate. |
4. | Please revise to disclose the number of shares being registered for resale in total and on behalf of the each stockholder. |
In response to the Staffs comment, the Company respectfully submits that in reliance on Rule 430B(b) of Regulation C it is omitting the identities of selling security holders and the amounts of securities to be registered on their behalf. The Company is eligible to use Form S-3 for a primary offering pursuant to General Instruction 1.B.1 as the Company is offering securities on its own behalf for cash and the aggregate market value of all common equity held by non-affiliates is at least $75.0 million. In addition, (i) the shares of common stock to be sold by selling stockholders, if any, were acquired pursuant to private placement offerings, all of which were completed prior to the Companys initial public offering in 2007, (ii) all of such shares of the Companys common stock were thus outstanding prior to the filing date of the original registration statement at issue, and (iii) page 5 of the Registration Statement refers to unnamed selling security holders in a generic manner by identifying the original private placement offerings in which such shares of common stock were sold. Furthermore, the Company represents to the Commission that neither it nor any of its predecessors is or was during the past three years a blank check company, shell company or issuer in a penny stock offering, in each case as defined in subsection (iv)(A) through (C) of Rule 430B(b)(2). Finally, the Registration Statement also makes clear that no selling stockholder will be able to sell shares of the Companys common stock pursuant to the Registration Statement until the Company identifies such selling stockholder and the shares being offering for resale by such selling stockholder in a subsequent prospectus supplement. | |||
The undertakings required by Rule 512(a)(5)(i), required for issuers relying upon Rule 430B of Regulation C, are included on pages II-4 through II-5 of the Registration Statement. |
cc: | Mike Rosenthall, U.S. Securities and Exchange Commission Suzanne Hayes, U.S. Securities and Exchange Commission John F. Crowley, Amicus Therapeutics, Inc. James E. Dentzer, Amicus Therapeutics, Inc. Geoffrey Gilmore, Esq., Amicus Therapeutics, Inc. Peter Macaluso, Esq., Amicus Therapeutics, Inc. Julio E. Vega, Esq., Bingham McCutchen LLP Noreen A. Martin, Esq., Bingham McCutchen LLP |