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TABLE OF CONTENTS
Table of Contents
As filed with the Securities and Exchange Commission on August 11, 2016
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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)
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301 Penobscot Drive
Redwood City, California 94063
(650) 556-9300
(Address, including zip code, and telephone number, including area code, of registrant's 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)
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Copies to:
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Jason W. Radford
Chief Legal Officer
Genomic Health, Inc.
301 Penobscot Drive
Redwood City, California 94063
(650) 556-9300
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Stanton D. Wong
Gabriella A. Lombardi
Pillsbury Winthrop Shaw Pittman LLP
Four Embarcadero Center, 22nd Floor
San Francisco, California 94111-5998
Telephone: (415) 983-1000
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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, please 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.
ý
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.
o
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. filed to register additional securities
or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box.
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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):
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Large accelerated filer
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Accelerated filer
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Non-accelerated filer
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(Do not check if a
smaller reporting company)
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Smaller reporting company
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CALCULATION OF REGISTRATION FEE
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Title of Each Class of Securities
to be Registered
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Amount to be
Registered
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Proposed Maximum
Offering Price Per
Share(1)
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Proposed Maximum
Aggregate Offering
Price(1)
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Amount of
Registration Fee
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Common Stock, par value $0.0001 per share
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13,650,835 shares
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$28.9932
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$395,781,390
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$39,856
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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 Registrant's Common Stock on The NASDAQ Global Select Market on August 8, 2016.
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.
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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 August 11, 2016
PROSPECTUS
13,650,835 Shares
GENOMIC HEALTH, INC.
Common Stock
The selling stockholders identified in this prospectus may sell up to an aggregate of 13,650,835 shares of our common stock. We will not receive
any of the proceeds from the sale of the shares of our common stock by the selling stockholders.
Our
registration of the shares of our common stock covered by this prospectus does not mean that the selling stockholders will offer or sell any of the shares of our common stock. The
selling stockholders identified in this prospectus may sell the shares of our common stock covered by this prospectus in a number of different ways and at varying prices. For additional information on
the possible methods of
sale that may be used by the selling stockholders, you should refer to the information under the heading "Plan of Distribution" on page 4 of this prospectus.
Our
common stock is listed on The NASDAQ Global Select Market under the symbol "GHDX." On August 10, 2016, the last reported sale price of our common stock on The NASDAQ Global
Select Market was $28.75 per share.
Investing in our securities involves risks. See the section entitled "Risk Factors" included in or incorporated by reference into 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 , 2016
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TABLE OF CONTENTS
We
have not authorized anyone to provide any information other than that contained or incorporated by reference in this prospectus, any applicable prospectus supplement or any free
writing prospectus prepared by or on behalf of us or to which we have referred you. We take no responsibility for, and can provide no assurance as to the reliability of, any other information that
others may give you. We are not making an offer to sell these securities in any jurisdiction 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.
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ABOUT THIS PROSPECTUS
Unless the context otherwise requires, references in this prospectus to "Genomic Health," "we," "us" and "our" refer to Genomic
Health, Inc. and its subsidiaries.
When
we refer to the selling stockholders in this prospectus, we are referring to the stockholder identified in the table under the heading "Selling Stockholders" herein as well as any
donees, pledgees, transferees or other successors-in-interest that received shares of our common stock after the date of this prospectus from the selling stockholder pursuant to a gift, a pledge, a
partnership distribution or other transfer (other than a public sale).
The
Genomic Health logo, Onco
type
, Onco
type
DX, Recurrence Score, DCIS Score,
Onco
type
SEQ, and Onco
type
IQ are trademarks or registered trademarks of Genomic Health, Inc. All
other trademarks and service marks are the property of their respective owners.
RISK FACTORS
Investing in our securities involves risk. Prior to making a decision about investing in our common stock, you should carefully
consider all of the information appearing or incorporated by reference in this prospectus, including the risk factors incorporated by reference to our most recent Annual Report on Form 10-K,
Quarterly Reports on Form 10-Q and Current Reports on Form 8-K, as well as any prospectus supplement to this prospectus. The occurrence of any of these risks or additional risks and
uncertainties might cause you to lose all or part of your investment in our common stock.
GENOMIC HEALTH, INC.
Genomic Health, Inc. is a global healthcare company that provides clinically-actionable genomic information to personalize
cancer treatment.
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. Our website address is www.genomichealth.com. We do not incorporate the information on, or accessible through, our website into this prospectus, and you
should not consider any information on, or accessible through, our website as part of this prospectus.
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.
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 Securities
and Exchange Commission, or SEC.
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USE OF PROCEEDS
We will not receive any proceeds from the sale of common stock by the selling stockholders. All proceeds from the sale of the shares
will be for the accounts of the selling stockholders. See "Selling Stockholders" and "Plan of Distribution."
SELLING STOCKHOLDERS
The following table sets forth, to our knowledge, certain information as of August 5, 2016 regarding the beneficial ownership of
our common stock by the selling stockholders and the shares being offered by the selling stockholders. Information with respect to beneficial ownership is based upon information obtained from the
selling stockholders. Information with respect to shares owned beneficially after the offering assumes the sale of all of the shares offered and no other purchases or sales of our common stock. The
selling stockholders may offer and sell some, all or none of their shares. This table does not include certain shares of our common stock held by affiliates of the selling stockholders.
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Shares Beneficially
Owned Prior
to Offering(1)
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Shares
Being
Offered
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Shares
Beneficially
Owned After
Offering
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Name and Address
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Number
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Percent
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Number
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Number
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Percent
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Baker Bros. Advisors LP(2)
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13,650,835
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40.9
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%
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13,650,835
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(1)
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Based
on 33,382,315 shares of our common stock outstanding on August 5, 2016.
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(2)
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The
shares of common stock beneficially owned by Baker Bros. Advisors LP ("Adviser") includes: (i)11,240,285 shares held by Baker Brothers Life
Sciences, L.P. ("Life Sciences"); (ii)1,729,408 shares held by 667, L.P. ("667"); (iii) 299,846 shares held by 14159, L.P. ("14159"); (iv) 194,161 shares held by
Baker/Tisch Investments, L.P. ("Baker Tisch"); (v) 173,897 shares held by Baker Bros. Investments, L.P. ("Baker Bros. Investments"); and (vi) 13,238 shares held by Baker
Bros. Investments II, L.P. ("Baker Bros. Investments II", and together with Life Sciences, 667, 14159, Baker Tisch and Baker Bros. Investments, the "Funds"). Julian C. Baker and Felix J. Baker
are members of the board of directors of Genomic Health, and are principals of Baker Bros. Advisors (GP) LLC, the sole general partner of Advisers and, as such, share voting and dispositive
power with respect to the shares held by the Funds.
Julian
C. Baker and Felix J. Baker, each a director of Genomic Health, are principals of Baker Bros. Advisors (GP) LLC, which is affiliated with the selling stockholders.
On
August 8, 2016, we entered into a Registration Rights Agreement with Baker Bros. Investments, L.P., Baker Bros. Investments II, L.P., 667, L.P., Baker
Brothers Life Sciences, L.P., 14159, L.P. and Baker/Tisch Investments, L.P. pursuant to which we agreed that, if requested, we will register the shares of our common stock
beneficially owned by the selling stockholders for resale under the Securities Act of 1933, or the Securities Act. Our registration obligations under this Registration Rights Agreement cover all
shares of our common stock now held or later acquired by the selling stockholders, will continue in effect for up to 10 years, and include our obligation to facilitate certain underwritten
public offerings of our common stock by the selling stockholders in the future. The registration statement of which this prospectus is a part is being filed pursuant to the Registration Rights
Agreement.
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PLAN OF DISTRIBUTION
The selling stockholders, which as used herein includes donees, pledgees, transferees or other successors-in-interest selling shares of
common stock or interests in shares of common stock received after the date of this prospectus from a selling stockholder as a gift, pledge, partnership distribution or other transfer, may, from time
to time, sell, transfer or otherwise dispose of any or all of their shares of common stock or interests in shares of common stock on any stock exchange, market or trading facility on which the shares
are traded or in private transactions. These dispositions may be at fixed prices, at prevailing market prices at the time of sale, at prices related to the prevailing market price, at varying prices
determined at the time of sale, or at negotiated prices.
The
selling stockholders may use any one or more of the following methods when disposing of shares or interests therein:
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ordinary brokerage transactions and transactions in which the broker-dealer solicits purchasers;
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block trades in which the broker-dealer will attempt to sell the shares as agent, but may position and resell a portion of the block
as principal to facilitate the transaction;
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purchases by a broker-dealer as principal and resale by the broker-dealer for its account;
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an exchange distribution in accordance with the rules of the applicable exchange;
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privately negotiated transactions;
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underwritten transactions;
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short sales effected after the date the registration statement of which this prospectus is a part is declared effective by the SEC;
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through the writing or settlement of options or other hedging transactions, whether through an options exchange or otherwise;
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through the distribution of the common stock by any selling stockholder to its partners, members or stockholders;
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broker-dealers may agree with the selling stockholders to sell a specified number of such shares at a stipulated price per share;
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a combination of any such methods of sale; and
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any other method permitted pursuant to applicable law.
In
addition, any shares covered by this prospectus that qualify for sale pursuant to Rule 144 under the Securities Act of 1933 may be sold under Rule 144 rather than under
this prospectus.
The
selling stockholders may, from time to time, pledge or grant a security interest in some or all of the shares of common stock owned by them and, if they default in the performance of
their secured obligations, the pledgees or secured parties may offer and sell the shares of common stock, from time to time, under this prospectus, or under an amendment or supplement to this
prospectus amending the list of selling stockholders to include the pledgee, transferee or other successors in interest as selling stockholders under this prospectus. The selling stockholders also may
transfer the shares of common stock in other circumstances, in which case the transferees, pledgees or other successors in interest will be the selling beneficial owners for purposes of this
prospectus.
In
connection with the sale of our common stock or interests therein, the selling stockholders may enter into hedging transactions with broker-dealers or other financial institutions,
which may in turn engage in short sales of the common stock in the course of hedging the positions they assume. The selling stockholders may also sell shares of our common stock short and deliver
these securities to close
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out
their short positions, or loan or pledge the common stock to broker-dealers that in turn may sell these securities. The selling stockholders may also enter into option or other transactions with
broker-dealers or other financial institutions or the creation of one or more derivative securities which require the delivery to such broker-dealer or other financial institution of shares offered by
this prospectus, which shares such broker-dealer or other financial institution may resell pursuant to this prospectus (as supplemented or amended to reflect such transaction).
The
aggregate proceeds to the selling stockholders from the sale of the common stock offered by them will be the purchase price of the common stock less discounts or commissions, if any.
Each of the selling stockholders reserves the right to accept and, together with their agents from time to time, to reject, in whole or in part, any proposed purchase of common stock to be made
directly or through agents. We will not receive any of the proceeds from this offering.
The
selling stockholders and any underwriters, broker-dealers or agents that participate in the sale of the common stock or interests therein may be "underwriters" within the meaning of
the Securities Act. Any discounts, commissions, concessions or profit they earn on any resale of the shares may be underwriting discounts and commissions under the Securities Act. Selling stockholders
who are "underwriters" within the meaning of the Securities Act will be subject to the prospectus delivery requirements of the Securities Act. Underwriters and their controlling persons, dealers and
agents may
be entitled, under agreements entered into with us and the selling stockholders, to indemnification against and contribution toward specific civil liabilities, including liabilities under the
Securities Act.
To
the extent required, the shares of our common stock to be sold, the names of the selling stockholders, the respective purchase prices and public offering prices, the names of any
agents, dealer or underwriter, and any applicable discounts, commissions, concessions or other compensation with respect to a particular offer will be set forth in an accompanying prospectus
supplement or, if appropriate, a post-effective amendment to the registration statement that includes this prospectus.
To
facilitate the offering of the shares offered by the selling stockholders, certain persons participating in the offering may engage in transactions that stabilize, maintain or
otherwise affect the price of the common stock. This may include over-allotments or short sales, which involve the sale by persons participating in the offering of more shares than were sold to them.
In these circumstances, these persons would cover such over-allotments or short positions by making purchases in the open market or by exercising their over-allotment option, if any. In addition,
these persons may stabilize or maintain the price of the common stock by bidding for or purchasing shares in the open market or by imposing penalty bids, whereby selling concessions allowed to dealers
participating in the offering may be reclaimed if shares sold by them are repurchased in connection with stabilization transactions. The effect of these transactions may be to stabilize or maintain
the market price of the common stock at a level above that which might otherwise prevail in the open market. These transactions may be discontinued at any time.
We
have agreed to indemnify the selling stockholders against certain liabilities, including liabilities under the Securities Act, relating to the registration of the shares offered by
this prospectus.
LEGAL MATTERS
The validity of the common stock offered by this prospectus will be passed upon for us by Pillsbury Winthrop Shaw Pittman LLP.
EXPERTS
Ernst & Young LLP, independent registered public accounting firm, has audited our consolidated financial statements and
schedule included in our Annual Report on Form 10-K for the year ended December 31, 2015, and the effectiveness of our internal control over financial reporting as of
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December 31,
2015, as set forth in their reports, which are incorporated by reference in this prospectus and elsewhere in this registration statement. Our financial statements and schedule are
incorporated by reference in reliance on Ernst & Young LLP's reports, given on their authority as experts in accounting and auditing.
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 other 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 website 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 website is http://www.sec.gov. The
information on the SEC's website is not part of this prospectus, and any references to this website or any other website 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, 2015;
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our Quarterly Reports on Form 10-Q for the quarters ended March 31, 2016 and June 30, 2016;
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our Current Reports on Form 8-K dated February 22, 2016, June 15, 2016, and June 23, 2016; 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 Section 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 brokerage or underwriting discounts and commissions. All expenses and all brokerage or underwriting discounts and commissions will be paid by the selling stockholders.
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SEC registration fee
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$
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39,856
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Legal fees and expenses
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20,000
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*
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Accounting fees and expenses
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10,000
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*
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Printing and miscellaneous fees and expenses
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$
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10,144
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$
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80,000
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*
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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 Registrant's Restated Certificate of Incorporation, Exhibit 3.3 to the Registrant's Registration Statement on Form S-1
(File No. 333-126626), and Article 6 of the Registrant's Amended and Restated Bylaws, Exhibit 3.1 to the Registrant's Current Report on Form 8-K filed on January 30,
2015, provide for indemnification of the Registrant's directors, officers, employees and other agents to the extent and under the circumstances permitted by the DGCL. 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
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4.2
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Registration Rights Agreement, dated as of August 8, 2016, between the Registrant and Baker Bros. Investments, L.P., Baker Bros. Investments II, L.P., 667, L.P., Baker Brothers Life Sciences, L.P.,
14159, L.P. and Baker/Tisch Investments, L.P. (incorporated by reference to Exhibit 10.1 to the Registrant's Quarterly Report on Form 10-Q for the Quarter Ended June 30, 2016).
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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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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;
(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) above 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
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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 purposes of determining any liability under the Securities Act of 1933, each filing of the Registrant's 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 plan's 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.
II-3
Table of Contents
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 August 11, 2016.
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GENOMIC HEALTH, INC.
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By:
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/s/ KIMBERLY J. POPOVITS
Kimberly J. Popovits
President and Chief 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 Kimberly J.
Popovits, G. Bradley Cole and Jason W. Radford, 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, Chief Executive Officer and Chairman of the Board (Principal Executive Officer)
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August 11, 2016
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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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August 11, 2016
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/s/ FELIX J. BAKER, PH.D.
Felix J. Baker, Ph.D.
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Director
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August 11, 2016
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II-4
Table of Contents
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Name
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Title
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Date
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/s/ JULIAN C. BAKER
Julian C. Baker
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Director
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August 11, 2016
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/s/ FRED E. COHEN, M.D., D. PHIL.
Fred E. Cohen, M.D., D. Phil.
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Director
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August 11, 2016
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/s/ HENRY J. FUCHS
Henry J. Fuchs
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Director
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August 11, 2016
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/s/ GINGER L. GRAHAM
Ginger L. Graham
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Director
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August 11, 2016
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/s/ RANDALL S. LIVINGSTON
Randall S. Livingston
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Director
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August 9, 2016
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/s/ GEOFFREY M. PARKER
Geoffrey M. Parker
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Director
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August 11, 2016
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II-5
Table of Contents
EXHIBIT INDEX
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Exhibit No.
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Description
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4.2
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Registration Rights Agreement, dated as of August 8, 2016, between the Registrant and Baker Bros. Investments, L.P., Baker Bros. Investments II, L.P., 667, L.P., Baker Brothers Life Sciences, L.P.,
14159, L.P. and Baker/Tisch Investments, L.P. (incorporated by reference to Exhibit 10.1 to the Registrant's Quarterly Report on Form 10-Q for the Quarter Ended June 30, 2016).
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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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