e424b3
Filed
pursuant to
Rule 424(b)(3)
File No. 333-167868
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 July 14,
2010, the last reported sale price of our common stock on The NASDAQ
Global Market was $12.68 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 July 14, 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;
and |
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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, June 14, 2010 and July 1, 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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