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As filed with the Securities and Exchange Commission on June 29, 2010
Registration No. 333-
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
GENOMIC HEALTH, INC.
(Exact Name of Registrant as Specified in Its Charter)
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Delaware
(State or Other Jurisdiction of
Incorporation or Organization)
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77-0552594
(I.R.S. Employer
Identification Number) |
301 Penobscot Drive
Redwood City, California 94063
(650) 556-9300
(Address, Including Zip Code, and Telephone Number, Including Area Code, of Registrants Principal Executive Offices)
Kimberly J. Popovits
President and Chief Executive Officer
Genomic Health, Inc.
301 Penobscot Drive
Redwood City, California 94063
(650) 556-9300
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code, of Agent for Service)
Copies to:
Stanton D. Wong
Gabriella A. Lombardi
Pillsbury Winthrop Shaw Pittman LLP
P.O. Box 7880
San Francisco, CA 94120
Telephone: (415) 983-1000
Approximate date of commencement of proposed sale to the public:
From time to time after this registration statement becomes effective, as determined by market conditions and other factors.
If the only securities being registered on this form are being offered pursuant to dividend or
interest reinvestment plans, check the following box. o
If any of the securities being registered on this form are to be offered on a delayed or
continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities
offered only in connection with dividend or interest reinvestment plans, check the following box.
þ
If this form is filed to register additional securities for an offering pursuant to Rule
462(b) under the Securities Act, please check the following box and list the Securities Act
registration statement number of the earlier effective registration statement for the same
offering. ¨
If this form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities
Act, check the following box and list the Securities Act registration statement number of the
earlier effective registration statement for the same offering. o
If this form is a registration statement pursuant to General Instruction I.D. or a
post-effective amendment thereto that shall become effective upon filing with the Commission
pursuant to Rule 462(e) under the Securities Act, check the following box. o
If this form is a post-effective amendment to a registration statement filed pursuant to
General Instruction I.D. to register additional securities or additional classes of securities
pursuant to Rule 413(b) under the Securities Act, check the following box. o
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated
filer, a non-accelerated filer, or a smaller reporting company. See the definitions of large
accelerated filer, accelerated filer and smaller reporting company in Rule 12b-2 of the
Exchange Act. (Check one):
Large accelerated filer o |
Accelerated filer þ |
Non-accelerated filer o (Do not check if a smaller reporting company) |
Smaller reporting company o |
CALCULATION OF REGISTRATION FEE
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Proposed Maximum |
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Proposed Maximum |
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Title of Each Class of Securities |
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Amount to be |
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Offering |
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Aggregate Offering |
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Amount of |
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To Be Registered |
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Registered |
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Price per Share(1) |
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Price(1) |
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Registration Fee(2) |
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Common Stock, par value $0.0001 per share |
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10,000,000 shares |
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14.18 |
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$ |
141,800,000 |
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$ |
10,111 |
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(1) |
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Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(c)
under the Securities Act of 1933, based on the average of the high and low prices of the
Common Stock on The NASDAQ Global Market on June 24, 2010. |
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(2) |
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The Registrant hereby offsets the filing fee for this registration statement by $1,628
of unused registration fees in respect of unsold securities registered under Registration Statement No. 333-141946, initially filed by
the Registrant April 6, 2007, which fees have already been paid and may be offset pursuant to Rule 457(p) against the
registration fee payable in respect of this registration statement. |
The Registrant hereby amends this registration statement on such date or dates as may be
necessary to delay its effective date until the Registrant shall file a further amendment which
specifically states that this registration statement shall thereafter become effective in
accordance with Section 8(a) of the Securities Act of 1933 or until the registration statement
shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may
determine.
The information in this prospectus is not complete and may be changed. We may not sell these
securities until the registration statement filed with Securities and Exchange Commission is
effective. This prospectus is not an offer to sell these securities and is not soliciting an offer
to buy these securities in any state where the offer or sale is not permitted.
Subject
To Completion, Dated June 29, 2010
PROSPECTUS
10,000,000 Shares
GENOMIC HEALTH, INC.
Common Stock
We may, from time to time, offer and sell up to 10,000,000 shares of our common stock in one
or more offerings. We will specify in the accompanying prospectus supplement more specific
information about any such offering.
We may offer the shares of common stock for sale directly to investors or through
underwriters, dealers or agents. We will set forth the names of any underwriters, dealers or
agents and their compensation in the accompanying prospectus supplement.
This prospectus may not be used to sell any shares of our common stock unless accompanied by a
prospectus supplement.
Our common stock is traded on The NASDAQ Global Market under the symbol GHDX. On June ___,
2010, the last reported sale price of our common stock on The NASDAQ
Global Market was $___________ per
share.
Investing in our common stock involves risks. See the section entitled Risk Factors in the
accompanying prospectus supplement and in the documents we incorporate by reference in this
prospectus.
Neither the Securities and Exchange Commission nor any state securities commission has
approved or disapproved of these securities or passed upon the adequacy or accuracy of this
prospectus. Any representation to the contrary is a criminal offense.
The date of this prospectus is , 2010.
TABLE OF CONTENTS
You should rely only on the information incorporated by reference or provided in this
prospectus, any prospectus supplement and the registration statement. We have not authorized
anyone else to provide you with different information. If anyone provides you with different or
inconsistent information, you should not rely on it. We are not making an offer to sell these
securities in any state where the offer or sale is not permitted. You should assume that the
information in this prospectus and any prospectus supplement, or incorporated by reference, is
accurate only as of the dates of those documents. Our business, financial condition, results of
operations and prospects may have changed since those dates.
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the Securities and
Exchange Commission, or SEC, using a shelf registration, or continuous offering, process. Under
this shelf registration process, we may, from time to time, sell up to 10,000,000 shares of our
common stock in one or more offerings.
This prospectus describes our common stock and the general manner in which we will offer our
common stock. Each time we sell shares of common stock, we will provide a prospectus supplement
that will contain specific information about the terms of that offering. Any prospectus supplement
may also add, update or change information contained in this prospectus. Any statement that we
make in this prospectus will be modified or superseded by any inconsistent statement made by us in
a prospectus supplement. The registration statement we filed with the SEC includes exhibits that
provide more detail of the matters discussed in this prospectus. You should read this prospectus
and the related exhibits filed with the SEC and any prospectus supplement, together with additional
information described under the heading Where You Can Find More Information, before making your
investment decision.
Unless the context otherwise requires, references in this prospectus and the accompanying
prospectus supplement to Genomic Health, we, us and our refer to Genomic Health, Inc. and
its subsidiaries.
RISK FACTORS
Investing in our common stock involves risk. The prospectus supplement relating to a
particular offering will contain a discussion of risks applicable to an investment in our common
stock. Prior to making a decision about investing in our common stock, you should carefully
consider the specific factors discussed under the heading Risk Factors in the applicable
prospectus supplement together with all of the other information contained in the prospectus
supplement or appearing or incorporated by reference in this prospectus.
GENOMIC HEALTH, INC.
Genomic Health is a life science company focused on the global development and
commercialization of genomic-based clinical diagnostic tests for cancer that allow physicians and
patients to make individualized treatment decisions. Our Oncotype DX platform utilizes quantitative
genomic analysis in standard tumor pathology specimens to provide tumor-specific information, or
the oncotype of a tumor. In January 2004, we launched our first Oncotype DX test, which is used
to predict the likelihood of cancer recurrence and the likelihood of chemotherapy benefit in early
stage breast cancer patients. In January 2010, we launched our second Oncotype DX test, which is
used to predict the likelihood of cancer recurrence in stage II colon cancer patients. We offer
our Oncotype DX tests as a clinical laboratory service from our clinical reference laboratory
located in Redwood City, California.
Genomic Health, Inc. was incorporated in Delaware in August 2000. Our principal executive
offices are located at 301 Penobscot Drive, Redwood City, California 94063, and our telephone
number is (650) 556-9300.
FORWARD-LOOKING STATEMENTS
When used in this prospectus, the words expects, believes, anticipates, estimates,
may, could, intends, and similar expressions are intended to identify forward-looking
statements. These statements are subject to known and unknown risks and uncertainties that could
cause actual results to differ materially from those projected or otherwise implied by the
forward-looking statements. These forward-looking statements speak only as of the date of this
prospectus. Given these risks and uncertainties, you should not place undue reliance on these
forward-looking statements. We will discuss many of these risks and uncertainties in greater
detail in any prospectus supplement under the heading Risk Factors. Additional cautionary
statements or discussions of risks and uncertainties that could affect our results or the
achievement of the expectations described in forward-looking statements may also be contained in
the documents we incorporate by reference into this prospectus.
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These forward-looking statements speak only as of the date of this prospectus. We expressly
disclaim any obligation or undertaking to release publicly any updates or revisions to any
forward-looking statements contained herein to reflect any change in our expectations with regard
thereto or any change in events, conditions or circumstances on which any such statement is based.
You should, however, review additional disclosures we make in our Annual Report on Form 10-K,
Quarterly Reports on Form 10-Q, and Current Reports on Form 8-K filed with the SEC.
USE OF PROCEEDS
Unless we state otherwise in the accompanying prospectus supplement, we intend to use the net
proceeds from the sale of the securities offered by this prospectus for general corporate purposes.
General corporate purposes may include additions to working capital, financing of capital
expenditures, repayment or redemption of existing indebtedness, and future acquisitions and
strategic investment opportunities. Pending the application of net proceeds, we expect to invest
the net proceeds in investment grade, interest-bearing securities.
DESCRIPTION OF CAPITAL STOCK
This section describes the general terms and provisions of the shares of our common stock, par
value $0.0001 per share, and preferred stock, par value $0.0001 per share. This description is
only a summary. Our restated certificate of incorporation and our amended and restated bylaws have
been filed as exhibits to our periodic reports filed with the SEC, which are incorporated by
reference in this prospectus. You should read our restated certificate of incorporation and our
amended and restated bylaws for additional information before you buy any of our common stock or
other securities. See Where You Can Find More Information.
Common Stock
We are authorized to issue up to 100,000,000 shares of common stock. As of May 31, 2010,
there were 28,805,096 shares of common stock issued and outstanding. Each holder of common stock
is entitled to one vote for each share of common stock held on all matters submitted to a vote of
stockholders. We have not provided for cumulative voting for the election of directors in our
restated certificate of incorporation. This means that the holders of a majority of the shares
voted can elect all of the directors then standing for election. Subject to preferences that may
apply to shares of preferred stock outstanding at the time, the holders of outstanding shares of
our common stock are entitled to receive dividends out of assets legally available at the times and
in the amounts that our board of directors may determine from time to time. Upon our liquidation,
dissolution or winding-up, the holders of common stock are entitled to share ratably in all assets
remaining after payment of all liabilities and the liquidation preferences of any outstanding
preferred stock. Holders of common stock have no preemptive or conversion rights or other
subscription rights. There are no redemption or sinking fund provisions applicable to the common
stock. All outstanding shares of common stock are fully paid and nonassessable, and the shares of
common stock offered, when issued, will be fully paid and nonassessable.
Preferred Stock
We are authorized to issue up to 5,000,000 shares of preferred stock. As of May 31, 2010,
there were no shares of preferred stock issued and outstanding. We may issue preferred stock in
series, with such designations, powers, preferences and other rights and qualifications,
limitations or restrictions as our board of directors may authorize, without further action by our
stockholders, including:
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the distinctive designation of each series and the number of shares that will
constitute the series; |
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the voting rights, if any, of shares of the series and the terms and conditions of
the voting rights; |
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the dividend rate on the shares of the series, the dates on which dividends are
payable, any restriction, limitation or condition upon the payment of dividends,
whether dividends will be cumulative, and the dates from and after which dividends
shall accumulate; |
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the prices at which, and the terms and conditions on which, the shares of the series
may be redeemed, if the shares are redeemable; |
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the terms and conditions of a sinking or purchase fund for the purchase or
redemption of shares of the series, if such a fund is provided; |
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any preferential amount payable upon shares of the series in the event of our
liquidation, dissolution or winding up, or upon the distribution of any of our assets;
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the prices or rates of conversion or exchange at which, and the terms and conditions
on which, the shares of the series may be converted or exchanged into other securities,
if the shares are convertible or exchangeable. |
The issuance of preferred stock could decrease the amount of earnings and assets available for
distribution to the holders of common stock or adversely affect the rights and powers, including
voting rights, of the holders of common stock. The issuance of preferred stock, while providing
flexibility in connection with possible acquisitions and other corporate purposes, could, among
other things, have the effect of delaying, deferring or preventing a change in control of our
company, which could depress the market price of our common stock.
Certain Provisions of Delaware Law and of the Charter and Bylaws
The provisions of Delaware law, our restated certificate of incorporation and our amended and
restated bylaws described below may have the effect of delaying, deferring or discouraging another
party from acquiring control of us.
Delaware Law. We are subject to the provisions of Section 203 of the Delaware General
Corporation Law regulating corporate takeovers. In general, those provisions prohibit a Delaware
corporation from engaging in any business combination with any interested stockholder for a period
of three years following the date that the stockholder became an interested stockholder, unless:
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the transaction is approved by the board before the date the interested stockholder
attained that status; |
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upon consummation of the transaction that resulted in the stockholder becoming an
interested stockholder, the interested stockholder owned at least 85% of the voting
stock of the corporation outstanding at the time the transaction commenced; or |
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on or after the date the business combination is approved by the board and
authorized at a meeting of stockholders by at least two-thirds of the outstanding
voting stock that is not owned by the interested stockholder. |
Section 203 defines business combination to include the following:
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any merger or consolidation involving the corporation and the interested
stockholder; |
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any sale, transfer, pledge or other disposition of 10% or more of the assets of the
corporation involving the interested stockholder; |
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subject to certain exceptions, any transaction that results in the issuance or
transfer by the corporation of any stock of the corporation to the interested
stockholder; |
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any transaction involving the corporation that has the effect of increasing the
proportionate share of the stock of any class or series of the corporation beneficially
owned by the interested stockholder; or |
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the receipt by the interested stockholder of the benefit of any loans, advances,
guarantees, pledges or other financial benefits provided by or through the corporation. |
In general, Section 203 defines an interested stockholder as any entity or person beneficially
owning 15% or more of the outstanding voting stock of the corporation and any entity or person
affiliated with or controlling or controlled by any of these entities or persons.
A Delaware corporation may opt out of these provisions either with an express provision in its
original certificate of incorporation or in an amendment to its certificate of incorporation or
bylaws approved by its stockholders. However, we have not opted out, and do not currently intend to
opt out of, these provisions. The statute could prohibit or delay mergers or other takeover or
change in control attempts and, accordingly, may discourage attempts to acquire us.
Charter and Bylaws. Our restated certificate of incorporation and amended and restated bylaws
provide that:
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our bylaws may be amended or repealed only by a two-thirds vote of our board of
directors or a two-thirds stockholder vote; |
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no action can be taken by stockholders except at an annual or special meeting of the
stockholders called in accordance with our bylaws, and stockholders may not act by
written consent; |
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stockholders may not call special meetings of the stockholders or fill vacancies on
the board; |
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the approval of holders of two-thirds of the shares entitled to vote at an election
of directors is required to amend or repeal the provisions of our certificate of
incorporation regarding the inability of stockholders to take action by written
consent; |
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our board of directors is authorized to issue preferred stock without stockholder
approval; and |
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we will indemnify officers and directors against losses that they may incur in
investigations and legal proceedings resulting from their services to us, which may
include services in connection with takeover defense measures. |
Transfer Agent
The transfer agent and registrar for our common stock is Computershare Trust Company, Inc.
PLAN OF DISTRIBUTION
We may sell the shares of common stock offered by this prospectus to one or more underwriters
or dealers for public offering and sale by them or to investors directly or through agents. The
accompanying prospectus supplement will set forth the terms of the offering and the method of
distribution and will identify any firms acting as underwriters, dealers or agents in connection
with the offering, including:
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the name or names of any underwriters, dealers or agents; |
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the purchase price of the shares being offered and the proceeds to us from the sale; |
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any underwriting discounts and other items constituting compensation to
underwriters, dealers or agents; |
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any public offering price; |
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any discounts or concessions allowed or reallowed or paid to dealers; and |
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any securities exchange or market on which the shares of common stock offered in the
prospectus supplement may be listed. |
Only those underwriters identified in such prospectus supplement are deemed to be underwriters
in connection with the shares of common stock offered in the prospectus supplement.
The distribution of the shares of common stock may be effected from time to time in one or
more transactions at a fixed price or prices, which may be changed, or at prices determined as the
applicable prospectus supplement specifies. The shares may be sold through a rights offering,
forward contracts or similar arrangements. In connection with the sale of the shares,
underwriters, dealers or agents may be deemed to have received compensation from us in the form of
underwriting discounts or commissions and also may receive commissions from securities purchasers
for whom they may act as agent. Underwriters may sell the shares to or through dealers, and the
dealers may receive compensation in the form of discounts, concessions or commissions from the
underwriters or commissions from the purchasers for whom they may act as agent. Some of the
underwriters, dealers or agents who participate in the distribution of the shares may engage in
other transactions with, and perform other services for, us or our subsidiaries in the ordinary
course of business.
We will provide in the applicable prospectus supplement information regarding any underwriting
discounts or other compensation that we pay to underwriters or agents in connection with the
offering of the shares, and any discounts, concessions or commissions which underwriters allow to
dealers. Underwriters, dealers and agents participating in the distribution of the shares may be
deemed to be underwriters, and any discounts and commissions they receive and any profit they
realize on the resale of the shares may be deemed to be underwriting discounts and commissions
under the Securities Act of 1933. Underwriters and their controlling persons, dealers and agents
may be entitled, under agreements entered into with us, to indemnification against and contribution
toward specific civil liabilities, including liabilities under the Securities Act.
The shares may or may not be listed on a national securities exchange. In connection with an
offering, the underwriters may purchase and sell shares of our common stock in the open market.
These transactions may include short sales, stabilizing transactions and purchases to cover
positions created by short sales. Short sales involve the sale by the underwriters of a greater
number of shares than they are required to purchase in an offering. Stabilizing transactions
consist of bids or purchases made for the purpose of preventing or retarding a decline in the
market price of the common stock while an offering is in progress. The underwriters also may
impose a penalty bid. This occurs when a particular underwriter repays to the underwriters a
portion of the underwriting discount received by it because the underwriters have repurchased
common stock sold by or for the account of that underwriter in stabilizing or short-covering
transactions. These activities by the underwriters may stabilize, maintain or otherwise affect the
market price of our common stock. As a result, the price of our common stock may be higher than the
price that otherwise might exist in the open market. If these activities are commenced, they may be
discontinued by the underwriters at any time.
LEGAL MATTERS
The validity of the shares of common stock offered by this prospectus will be passed upon for
us by Pillsbury Winthrop Shaw Pittman LLP, San Francisco, California.
EXPERTS
The
consolidated financial statements of Genomic Health, Inc. appearing in Genomic Health, Inc.s Annual Report
on Form 10-K, including the schedule appearing therein, for the year ended December 31, 2009, and the effectiveness of Genomic Health, Inc.s internal control
over financial reporting as of December 31, 2009, have been audited by Ernst & Young LLP,
independent registered public accounting firm, as set forth in their reports thereon, included
therein, and incorporated herein by reference. Such consolidated financial statements are
incorporated herein by reference in reliance upon those reports,
given on the authority of such firm as experts in accounting and auditing.
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WHERE YOU CAN FIND MORE INFORMATION
We have filed a registration statement on Form S-3 with the SEC under the Securities Act of
1933. This prospectus is part of the registration statement but the registration statement
includes and incorporates by reference additional information and exhibits. We file annual,
quarterly and current reports, proxy statements and other information with the SEC. You may read
and copy the registration statement and any document we file with the SEC at the public reference
room maintained by the SEC at 100 F Street, N.E., Washington, D.C. 20549. You may obtain
information on the operation of the public reference room by calling the SEC at 1-800-SEC-0330.
The SEC also maintains a web site that contains reports, proxy and information statements and other
information regarding companies, such as ours, that file documents electronically with the SEC.
The address of that site on the world wide web is http://www.sec.gov. The information on the SECs
web site is not part of this prospectus, and any references to this web site or any other web site
are inactive textual references only.
The SEC permits us to incorporate by reference the information contained in documents we
file with the SEC, which means that we can disclose important information to you by referring you
to those documents rather than by including them in this prospectus. Information that is
incorporated by reference is considered to be part of this prospectus and you should read it with
the same care that you read this prospectus. Later information that we file with the SEC will
automatically update and supersede the information that is either contained, or incorporated by
reference, in this prospectus, and will be considered to be a part of this prospectus from the date
those documents are filed. We have filed with the SEC, and incorporate by reference in this
prospectus:
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our Annual Report on Form 10-K for the year ended December 31, 2009; |
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our Quarterly Report on Form 10-Q for the quarter ended March 31, 2010; |
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our Current Reports on Form 8-K filed on February 3, 2010 (with respect to Item 8.01
only), February 24, 2010 and June 14, 2010; and |
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the description of our common stock contained in our Registration Statement on Form
8-A filed on September 26, 2005, including any amendment or report filed for the
purpose of updating such description. |
We also incorporate by reference all additional documents that we file with the SEC under the terms
of Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act that are made after the initial filing
date of the registration statement of which this prospectus is a part and the effectiveness of the
registration statement, as well as between the date of this prospectus and the termination of any
offering of securities offered by this prospectus. We are not, however, incorporating, in each
case, any documents or information that we are deemed to furnish and not file in accordance with
SEC rules.
You may request a copy of any or all of the documents incorporated by reference but not
delivered with this prospectus, at no cost, by writing or telephoning us at the following address
and number: Investor Relations, Genomic Health, Inc., 301 Penobscot Drive, Redwood City,
California 94063, telephone (650) 556-9300. We will not, however, send exhibits to those
documents, unless the exhibits are specifically incorporated by reference in those documents.
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PART II
Information Not Required In Prospectus
Item 14. Other Expenses of Issuance and Distribution.
The following is a statement of estimated expenses in connection with the issuance and
distribution of the securities being registered, other than underwriting discounts and commission.
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SEC Registration Fee |
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10,111 |
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The NASDAQ Stock Market Listing Fees* |
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60,000 |
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Transfer Agent and Registrar Fees* |
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20,000 |
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Printing Expenses* |
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25,000 |
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Legal Fees and Expenses* |
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100,000 |
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Accounting Fees and Expenses* |
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25,000 |
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Miscellaneous* |
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9,889 |
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$ |
250,000 |
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Item 15. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of the State of Delaware (the DGCL) provides for
the indemnification of officers, directors, and other corporate agents in terms sufficiently broad
to indemnify such persons under certain circumstances for liabilities (including reimbursement for
expenses incurred) arising under the Securities Act of 1933. Article VII of the Registrants
Restated Certificate of Incorporation, Exhibit 3.3 to the Registrants Registration Statement on
Form S-1 (File No. 333-126626), and Article 6 of the Registrants Amended and Restated Bylaws,
Exhibit 3.1 to the Registrants Current Report on Form 8-K filed on January 9, 2009, provide for
indemnification of the Registrants directors, officers, employees and other agents to the extent
and under the circumstances permitted by the Delaware General Corporation Law. The Registrant has
also entered into agreements with its directors and officers that will require the Registrant,
among other things, to indemnify them against certain liabilities that may arise by reason of their
status or service as directors or officers to the fullest extent not prohibited by law.
Item 16. Exhibits.
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Exhibit No. |
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Description |
1.1*
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Form of Underwriting Agreement. |
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4.1
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Specimen Common Stock Certificate (incorporated by reference to Exhibit
4.1 filed with the Registrants Registration Statement on Form S-1 (File
No. 333-126626)). |
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5.1
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Opinion of Pillsbury Winthrop Shaw Pittman LLP. |
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23.1
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Consent of Pillsbury Winthrop Shaw Pittman LLP (included in Exhibit 5.1). |
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23.2
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Consent of Independent Registered Public Accounting Firm. |
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24.1
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Power of Attorney (included on the signature page hereof). |
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To be filed by amendment or pursuant to a report to be filed pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934, if applicable, and incorporated herein by reference. |
Item 17. Undertakings.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective
amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the Securities Act of 1933;
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(ii) To reflect in the prospectus any facts or events arising after the effective date of the
registration statement (or the most recent post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not exceed that which
was registered) and any deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Securities and Exchange Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more
than a 20 percent change in the maximum aggregate offering price set forth in the Calculation of
Registration Fee table in the effective registration statement; and
(iii) To include any material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material change to such information in
the registration statement.
Provided, however, that paragraphs (i), (ii) and (iii) do not apply if the information required to
be included in a post-effective amendment by those paragraphs is contained in reports filed with or
furnished to the Securities and Exchange Commission by the registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that
is part of the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act of 1933, each
such post-effective amendment shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities
being registered which remain unsold at the termination of the offering.
(4) That, for the purpose of determining liability under the Securities Act of 1933 to any
purchaser:
(A) Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed
to be part of the registration statement as of the date the filed prospectus was deemed part
of and included in the registration statement; and
(B) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7)
as part of a registration statement in reliance on Rule 430B relating to an offering made
pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information
required by Section 10(a) of the Securities Act of 1933 shall be deemed to be part of and
included in the registration statement as of the earlier of the date such form of prospectus
is first used after effectiveness or the date of the first contract of sale of securities in
the offering described in the prospectus. As provided in Rule 430B, for liability purposes
of the issuer and any person that is at that date an underwriter, such date shall be deemed
to be a new effective date of the registration statement relating to the securities in the
registration statement to which that prospectus relates, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof. Provided,
however, that no statement made in a registration statement or prospectus that is part of
the registration statement or made in a document incorporated or deemed incorporated by
reference into the registration statement or prospectus that is part of the registration
statement will, as to a purchaser with a time of contract of sale prior to such effective
date, supersede or modify any statement that was made in the registration statement or
prospectus that was part of the registration statement or made in any such document
immediately prior to such effective date.
(5) That, for the purpose of determining liability of the registrant under the Securities Act
of 1933 to any purchaser in the initial distribution of the securities:
The undersigned registrant undertakes that in a primary offering of securities of the
undersigned registrant pursuant to this registration statement, regardless of the
underwriting method used to sell the securities to the purchaser, if the securities are
offered or sold to such purchaser by means of any of the
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following communications, the undersigned registrant will be a seller to the purchaser
and will be considered to offer or sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the undersigned registrant relating to
the offering required to be filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering prepared by or on behalf of
the undersigned registrant or used or referred to by the undersigned registrant;
(iii) The portion of any other free writing prospectus relating to the offering
containing material information about the undersigned registrant or its securities provided
by or on behalf of the undersigned registrant; and
(iv) Any other communication that is an offer in the offering made by the undersigned
registrant to the purchaser.
(6) That, for purposes of determining any liability under the Securities Act of 1933, each
filing of the registrants annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plans
annual report pursuant to section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be
permitted to directors, officers and controlling persons of the registrant pursuant to any charter
provision, by law or otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public policy as expressed in
the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in the successful defense of
any action, suit or proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public policy as expressed
in the Securities Act and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it
has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and
has duly caused this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized in the City of Redwood City, State of
California, on June 29, 2010.
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GENOMIC HEALTH, INC.
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By: |
/s/ Kimberly J. Popovits
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Kimberly J. Popovits |
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President and Chief Executive Officer
(Principal Executive Officer) |
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby
constitutes and appoints Randal W. Scott, Kimberly J. Popovits and G. Bradley Cole, and each of
them, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him or her and in his or her name, place and stead, in any and all capacities,
to sign any and all amendments, including post-effective amendments, to this Registration
Statement, and any registration statement relating to the offering covered by this Registration
Statement and filed pursuant to Rule 462(b) under the Securities Act of 1933, and to file the same,
with exhibits thereto and other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing requisite and necessary to be done, as
fully for all intents and purposes as he or she might or could do in person, hereby ratifying and
confirming all that each of said attorneys in fact and agents or their substitute or substitutes
may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has
been signed by the following persons in the capacities and on the dates indicated.
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Name |
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Title |
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Date |
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/s/ Kimberly J. Popovits
Kimberly J. Popovits
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President
and Chief Executive Officer
(Principal Executive Officer)
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June 29, 2010 |
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/s/ G. Bradley Cole
G. Bradley Cole
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Chief
Operating Officer and Chief
Financial Officer (Principal
Financial and Accounting Officer)
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June 29, 2010 |
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/s/ Randal W. Scott
Randal W. Scott, Ph.D.
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Executive
Chairman of the Board
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June 29, 2010 |
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/s/ Julian C. Baker
Julian C. Baker
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Director
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June 29, 2010 |
II-4
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Name |
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Title |
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Date |
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/s/ Brook H. Byers
Brook H. Byers
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Director
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June 29, 2010 |
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/s/ Fred E. Cohen
Fred E. Cohen, M.D., D. Phil.
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Director
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June 29, 2010 |
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/s/ Samuel D. Colella
Samuel D. Colella
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Director
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June 29, 2010 |
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/s/ Ginger L. Graham
Ginger L. Graham
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Director
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June 29, 2010 |
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Director
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June ___, 2010 |
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/s/ Woodrow A. Myers
Woodrow A. Myers, Jr., M.D.
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Director
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June 29, 2010 |
II-5
EXHIBIT INDEX
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Exhibit No. |
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Description |
1.1*
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Form of Underwriting Agreement. |
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4.1
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Specimen Common Stock Certificate (incorporated by reference to Exhibit
4.1 filed with the Registrants Registration Statement on Form S-1 (File
No. 333-126626)). |
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5.1
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Opinion of Pillsbury Winthrop Shaw Pittman LLP. |
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23.1
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Consent of Pillsbury Winthrop Shaw Pittman LLP (included in Exhibit 5.1). |
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23.2
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Consent of Independent Registered Public Accounting Firm. |
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24.1
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Power of Attorney (included on the signature page hereof). |
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* |
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To be filed by amendment or pursuant to a report to be filed pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934, if applicable, and incorporated herein by reference. |