sv3za
As filed with the Securities
and Exchange Commission on April 24, 2007
Registration
No. 333-141946
UNITED
STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C.
20549
Amendment No. 1
to
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
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77-0552594
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(State or Other Jurisdiction
of
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(I.R.S. Employer
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Incorporation or
Organization)
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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 Registrants
Principal Executive Offices)
Randal W. Scott, Ph.D.
Chief Executive Officer
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. 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. to
register additional securities or additional classes of
securities pursuant to Rule 413(b) under the Securities
Act, check the following box. o
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.
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Subject
To Completion, Dated April 24, 2007
PROSPECTUS
$100,000,000
GENOMIC
HEALTH, INC.
Debt
Securities
Common Stock
Preferred Stock
Depositary Shares
Warrants
We may, from time to time, offer and sell debt securities,
preferred stock, either separately or represented by depositary
shares, common stock or warrants, either separately or in units,
in one or more offerings. The debt securities, preferred stock
and warrants may be convertible into or exercisable or
exchangeable for common or preferred stock or debt securities.
We will specify in the accompanying prospectus supplement more
specific information about any such offering. The aggregate
initial offering price of all securities sold under this
prospectus will not exceed $100,000,000, including the
U.S. dollar equivalent if the public offering of any such
securities is denominated in one or more foreign currencies,
foreign currency units or composite currencies.
We may offer these securities independently or together in any
combination 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 of these securities
unless accompanied by a prospectus supplement.
Our common stock is traded on the NASDAQ Global Market under the
symbol GHDX. On April 23, 2007, the closing
price of our common stock on the NASDAQ Global Market was
$17.615 per share.
Investing in our securities 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 ,
2007.
TABLE OF
CONTENTS
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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, issue and sell any combination of debt securities,
preferred stock, either separately or represented by depositary
shares, common stock or warrants, either separately or in units,
in one or more offerings with a maximum aggregate offering price
of $100,000,000, including the U.S. dollar equivalent if
the public offering of any such securities is denominated in one
or more foreign currencies, foreign currency units or composite
currencies.
This prospectus provides you with a general description of the
securities we may offer. Each time we sell securities, we will
provide a prospectus supplement that will contain specific
information about the terms of that offering and the offered
securities. 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.
RISK
FACTORS
Investing in our securities involves risk. The prospectus
supplement relating to a particular offering will contain a
discussion of risks applicable to an investment in the
securities offered. Prior to making a decision about investing
in our securities, 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
development and commercialization of genomic-based clinical
diagnostic tests for cancer that allow physicians and patients
to make individualized treatment decisions. In January 2004, we
launched our first test under the brand name Oncotype DX for
early stage breast cancer patients. We believe that Oncotype DX
is the first genomic test with clinical evidence supporting its
ability to predict the likelihood of cancer recurrence, the
likelihood of patient survival within 10 years of diagnosis
and the likelihood of chemotherapy benefit. Our initial test is
focused on patients with early stage, node negative, or
N−, estrogen receptor positive, or ER+, breast cancer who
will be treated with tamoxifen, a frequently used hormonal
therapy.
Genomic Health 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
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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 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, research and development, clinical studies,
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.
RATIO OF
EARNINGS TO FIXED CHARGES
The ratio of earnings to fixed charges for each of the periods
indicated are set forth in the following table. Our earnings
were insufficient to cover fixed charges for each of those
periods. We have not included a ratio of earnings to combined
fixed charges and preferred stock dividends because we do not
have any preferred stock outstanding as of the date of this
prospectus.
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Year Ended December 31,
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2002
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2003
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2004
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2005
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2006
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Ratio of earnings to fixed charges
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(1
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(1
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(1
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(1
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(1
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(1) |
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The ratio of earnings to fixed charges is computed by dividing
loss before taxes plus fixed charges by fixed charges. Fixed
charges consist of interest expense (including interest expense
from capital leases) and the estimated portion of rental expense
deemed by us to be representative of the interest factor of
rental payments under operating leases. Earnings were
insufficient to cover fixed charges by $11,068,000 for the year
ended December 31, 2002, $15,250,000 for the year ended
December 31, 2003, $24,995,000 for the year ended
December 31, 2004, $31,361,000 for the year ended
December 31, 2005, and $28,920,000 for the year ended
December 31, 2006. |
DESCRIPTION
OF DEBT SECURITIES
The following is a summary of the general terms of the debt
securities. We will file a prospectus supplement that may
contain additional terms when we issue debt securities. The
terms presented here, together with the terms in a related
prospectus supplement, will be a description of the material
terms of the debt securities. You should also read the indenture
under which the debt securities are to be issued. We have filed
a form of indenture governing different types of debt securities
with the SEC as an exhibit to the registration statement of
which this prospectus is a part. All capitalized terms have the
meanings specified in the indenture.
We may issue, from time to time, debt securities, in one or more
series. The debt securities we offer will be issued under an
indenture between us and the trustee named in the indenture.
These debt securities that we may issue include senior debt
securities, subordinated debt securities, convertible debt
securities and exchangeable debt securities. The following is a
summary of the material provisions of the indenture filed as an
exhibit to the registration statement of which this prospectus
is a part. For each series of debt securities, the applicable
prospectus supplement for the series may change and supplement
the summary below.
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General
Terms of the Indenture
The indenture does not limit the amount of debt securities that
we may issue. It provides that we may issue debt securities up
to the principal amount that we may authorize and they may be in
any currency or currency unit that we may designate. Except for
the limitations on consolidation, merger and sale of all or
substantially all of our assets contained in the indenture, the
terms of the indenture do not contain any covenants or other
provisions designed to give holders of any debt securities
protection against changes in our operations, financial
condition or transactions involving us. For each series of debt
securities, any restrictive covenants for those debt securities
will be described in the applicable prospectus supplement for
those debt securities.
We may issue the debt securities issued under the indenture as
discount securities, which means they may be sold at
a discount below their stated principal amount. These debt
securities, as well as other debt securities that are not issued
at a discount, may, for United States federal income tax
purposes, be treated as if they were issued with original
issue discount, or OID, because of interest payment and
other characteristics. Special United States federal income tax
considerations applicable to debt securities issued with
original issue discount will be described in more detail in any
applicable prospectus supplement.
You should refer to the prospectus supplement relating to a
particular series of debt securities for a description of the
following terms of the debt securities offered by that
prospectus supplement and by this prospectus:
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the title and authorized denominations of those debt securities;
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any limit on the aggregate principal amount of that series of
debt securities;
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the date or dates on which principal and premium, if any, of the
debt securities of that series is payable;
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interest rates, and the dates from which interest, if any, on
the debt securities of that series will accrue, and the dates
when interest is payable and the maturity;
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the right, if any, to extend the interest payment periods and
the duration of the extensions;
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if the amount of payments of principal or interest is to be
determined by reference to an index or formula, or based on a
coin or currency other than that in which the debt securities
are stated to be payable, the manner in which these amounts are
determined and the calculation agent, if any, with respect
thereto;
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the place or places where and the manner in which principal of,
premium, if any, and interest, if any, on the debt securities of
that series will be payable and the place or places where those
debt securities may be presented for transfer and, if
applicable, conversion or exchange;
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the period or periods within which, the price or prices at
which, the currency or currencies in which, and other terms and
conditions upon which those debt securities may be redeemed, in
whole or in part, at our option or the option of a holder of
those securities, if we or a holder is to have that option;
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our obligation or right, if any, to redeem, repay or purchase
those debt securities pursuant to any sinking fund or analogous
provision or at the option of a holder of those securities, and
the terms and conditions upon which the debt securities will be
redeemed, repaid or purchased, in whole or in part, pursuant to
that obligation;
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the terms, if any, on which the debt securities of that series
will be subordinate in right and priority of payment to our
other debt;
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the denominations in which those debt securities will be
issuable;
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if other than the entire principal amount of the debt securities
when issued, the portion of the principal amount payable upon
acceleration of maturity as a result of a default on our
obligations;
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whether those debt securities will be issued in fully registered
form without coupons or in a form registered as to principal
only with coupons or in bearer form with coupons;
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whether any securities of that series are to be issued in whole
or in part the form of one or more global securities and the
depositary for those global securities;
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if other than United States dollars, the currency or currencies
in which payment of principal of or any premium or interest on
those debt securities will be payable;
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if the principal of or any premium or interest on the debt
securities of that series is to be payable, or is to be payable
at our election or the election of a holder of those securities,
in securities or other property, the type and amount of those
securities or other property, or the manner of determining that
amount, and the period or periods within which, and the terms
and conditions upon which, any such election may be made;
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the events of default and covenants relating to the debt
securities that are in addition to, modify or delete those
described in this prospectus;
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conversion or exchange provisions, if any, including conversion
or exchange prices or rates and adjustments thereto;
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whether and upon what terms the debt securities may be defeased,
if different from the provisions set forth in the indenture;
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the nature and terms of any security for any secured debt
securities;
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the terms applicable to any debt securities issued at a discount
from their stated principal amount; and
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any other specific terms of any debt securities.
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The applicable prospectus supplement will present material
United States federal income tax considerations for holders of
any debt securities and the securities exchange or quotation
system on which any debt securities are to be listed or quoted.
Conversion
or Exchange Rights
Debt securities may be convertible into or exchangeable for
shares of our equity securities or other securities. The terms
and conditions of conversion or exchange will be stated in the
applicable prospectus supplement. The terms will include, among
others, the following:
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the conversion or exchange price;
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the conversion or exchange period;
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provisions regarding our ability or the ability of any holder to
convert or exchange the debt securities;
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events requiring adjustment to the conversion or exchange
price; and
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provisions affecting conversion or exchange in the event of our
redemption of the debt securities.
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Consolidation,
Merger or Sale
We cannot consolidate or merge with or into, or transfer or
lease all or substantially all of our assets to, any person,
unless the successor corporation or person to which our assets
are transferred or leased is organized under the laws of the
United States, any state of the United States or the District of
Columbia and it expressly assumes our obligations under the debt
securities and the indenture. In addition, we cannot complete
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such a transaction unless immediately after completing the
transaction, no event of default under the indenture, and no
event that, after notice or lapse of time or both, would become
an event of default under the indenture, has occurred and is
continuing. When the person to whom our assets are transferred
or leased has assumed our obligations under the debt securities
and the indenture, we will be discharged from all our
obligations under the debt securities and the indenture except
in limited circumstances.
This covenant would not apply to any recapitalization
transaction, a change of control affecting us or a highly
leveraged transaction, unless the transaction or change of
control were structured to include a merger or consolidation or
transfer or lease of all or substantially all of our assets.
Events of
Default
The indenture provides that the following will be events
of default with respect to any series of debt securities:
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failure to pay interest for 30 days after the date payment
is due and payable;
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failure to pay principal or premium, if any, on any debt
security when due, either at maturity, upon any redemption, by
declaration or otherwise and, in the case of technical or
administrative difficulties, only if such default persists for a
period of more than three business days;
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failure to make sinking fund payments when due and continuance
of such default for a period of 30 days;
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failure to perform other covenants for 60 days after notice
that performance was required;
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events in bankruptcy, insolvency or reorganization relating to
us; or
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any other event of default provided in the applicable
officers certificate, resolution of our board of directors
or the supplemental indenture under which we issue a series of
debt securities.
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An event of default for a particular series of debt securities
does not necessarily constitute an event of default for any
other series of debt securities issued under the indenture. For
each series of debt securities, any modifications to the above
events of default will be described in the applicable prospectus
supplement for those debt securities.
The indenture provides that if an event of default specified in
the first, second, third, fourth or sixth bullets above occurs
and is continuing, either the trustee or the holders of at least
25% in aggregate principal amount of the outstanding debt
securities of that series may declare the principal amount of
all those debt securities (or, in the case of discount
securities or indexed securities, that portion of the principal
amount as may be specified in the terms of that series) to be
due and payable immediately. If an event of default specified in
the fifth bullet above occurs and is continuing, then the
principal amount of all those debt securities (or, in the case
of discount securities or indexed securities, that portion of
the principal amount as may be specified in the terms of that
series) will be due and payable immediately, without any
declaration or other act on the part of the trustee or any
holder. In certain cases, holders of a majority in principal
amount of the outstanding debt securities of any series may, on
behalf of holders of all those debt securities, rescind and
annul a declaration of acceleration.
The indenture imposes limitations on suits brought by holders of
debt securities against us. Except for actions for payment of
overdue principal or interest, no holder of debt securities of
any series may institute any action against us under the
indenture unless:
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the holder has previously given to the trustee written notice of
default and continuance of such default;
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the holders of at least 25% in principal amount of the
outstanding debt securities of the affected series have
requested that the trustee institute the action;
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the requesting holders have offered the trustee indemnity for
the reasonable expenses and liabilities that may be incurred by
bringing the action;
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the trustee has not instituted the action within 60 days of
the request and offer of indemnity; and
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the trustee has not received inconsistent direction by the
holders of a majority in principal amount of the outstanding
debt securities of the affected series.
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We will be required to file annually with the trustee a
certificate, signed by one of our officers, stating whether or
not the officer knows of any default by us in the performance,
observance or fulfillment of any condition or covenant of the
indenture.
Discharge,
Defeasance and Covenant Defeasance
We can discharge or decrease our obligations under the indenture
as stated below.
We may discharge obligations to holders of any series of debt
securities that have not already been delivered to the trustee
for cancellation and that have either become due and payable or
are by their terms to become due and payable, or are scheduled
for redemption, within one year. We may effect a discharge by
irrevocably depositing with the trustee cash or government
obligations denominated in the currency of the debt securities,
as trust funds, in an amount certified to be enough to pay when
due, whether at maturity, upon redemption or otherwise, the
principal of, and any premium and interest on, the debt
securities and any mandatory sinking fund payments.
Unless otherwise provided in the applicable prospectus
supplement, we may also discharge any and all of our obligations
to holders of any series of debt securities at any time, which
we refer to as defeasance. We may also be released from the
obligations imposed by any covenants of any outstanding series
of debt securities and provisions of the indenture, and we may
omit to comply with those covenants without creating an event of
default under the trust declaration, which we refer to as
covenant defeasance. We may effect defeasance and covenant
defeasance only if, among other things:
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we irrevocably deposit with the trustee cash or government
obligations denominated in the currency of the debt securities,
as trust funds, in an amount certified to be enough to pay at
maturity, or upon redemption, the principal (including any
mandatory sinking fund payments) of, and any premium and
interest on, all outstanding debt securities of the
series; and
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we deliver to the trustee an opinion of counsel from a
nationally recognized law firm to the effect that the holders of
the series of debt securities will not recognize income, gain or
loss for U.S. federal income tax purposes as a result of
the defeasance or covenant defeasance and that defeasance or
covenant defeasance will not otherwise alter the holders
U.S. federal income tax treatment of principal, and any
premium and interest payments on, the series of debt securities.
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In the case of a defeasance by us, the opinion we deliver must
be based on a ruling of the Internal Revenue Service issued, or
a change in U.S. federal income tax law occurring, after
the date of the indenture, since such a result would not occur
under the U.S. federal income tax laws in effect on that
date.
Although we may discharge or decrease our obligations under the
indenture as described in the two preceding paragraphs, we may
not avoid, among other things, our duty to register the transfer
or exchange of any series of debt securities, to replace any
temporary, mutilated, destroyed, lost or stolen series of debt
securities or to maintain an office or agency in respect of any
series of debt securities.
Modification
of the Indenture
The indenture provides that we and the trustee may enter into
supplemental indentures without the consent of the holders of
debt securities to:, among other things
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evidence the assumption by a successor entity of our obligations;
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add to our covenants for the benefit of the holders of debt
securities, or to surrender any rights or power conferred upon
us;
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add any additional events of default;
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cure any ambiguity or correct any inconsistency or defect in the
indenture;
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add to, change or eliminate any of the provisions of the
indenture in a manner that will become effective only when there
is no outstanding debt security which is entitled to the benefit
of the provision as to which the modification would apply;
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secure any debt securities;
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establish the forms or terms of debt securities of any series;
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evidence and provide for the acceptance of appointment by a
successor trustee and add to or change any of the provisions of
the indenture as is necessary for the administration of the
trusts by more than one trustee;
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modify, eliminate or add to the provisions of the indenture as
shall be necessary to effect the qualification of the indenture
under the Trust Indenture Act of 1939 or under any similar
federal statute later enacted, and to add to the indenture such
other provisions as may be expressly required by the Trust
Indenture Act; and
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make any other provisions with respect to matters or questions
arising under the indenture that will not be inconsistent with
any provision of the indenture as long as the new provisions do
not adversely affect the interests of the holders of any
outstanding debt securities of any series created prior to the
modification.
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The indenture also provides that we and the trustee may, with
the consent of the holders of not less than a majority in
aggregate principal amount of debt securities of each series of
debt securities affected by such supplemental indenture then
outstanding, add any provisions to, or change in any manner,
eliminate or modify in any way the provisions of, the indenture
or any supplemental indenture or modify in any manner the rights
of the holders of the debt securities. We and the trustee may
not, however, without the consent of the holder of each
outstanding debt security affected thereby:
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extend the final maturity of any debt security;
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reduce the principal amount or premium, if any;
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reduce the rate or extend the time of payment of interest;
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reduce the amount of the principal of any debt security issued
with an original issue discount that is payable upon
acceleration;
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change the currency in which the principal, and any premium or
interest, is payable;
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impair the right to institute suit for the enforcement of any
payment on any debt security when due;
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if applicable, adversely affect the right of a holder to convert
or exchange a debt security; or
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reduce the percentage of holders of debt securities of any
series whose consent is required for any modification of the
indenture or for waivers of compliance with or defaults under
the indenture with respect to debt securities of that series.
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The indenture provides that the holders of not less than a
majority in aggregate principal amount of the then outstanding
debt securities of any series, by notice to the relevant
trustee, may on behalf of the holders of the debt securities of
that series waive any default and its consequences under the
indenture except:
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a default in the payment of, any premium and any interest on, or
principal of, any such debt security held by a nonconsenting
holder; or
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a default in respect of a covenant or provision of the indenture
that cannot be modified or amended without the consent of the
holder of each outstanding debt security of each series affected.
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8
Registered
Global Securities and Book Entry System
The debt securities of a series may be issued in whole or in
part in book-entry form and will be represented by one or more
fully registered global securities. We will deposit any
registered global securities with a depositary or with a nominee
for a depositary identified in the applicable prospectus
supplement and registered in the name of such depositary or
nominee. In such case, we will issue one or more registered
global securities denominated in an amount equal to the
aggregate principal amount of all of the debt securities of the
series to be issued and represented by such registered global
security or securities. This means that we will not issue
certificates to each holder.
Unless and until it is exchanged in whole or in part for debt
securities in definitive registered form, a registered global
security may not be transferred except as a whole:
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by the depositary for the registered global security to its
nominee;
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by a nominee of the depositary to the depositary or another
nominee of the depositary; or
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by the depositary or its nominee to a successor of the
depositary or a nominee of the successor.
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The prospectus supplement relating to a series of debt
securities will describe the specific terms of the depositary
arrangement involving any portion of the series represented by a
registered global security. We anticipate that the following
provisions will apply to all depositary arrangements for debt
securities:
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ownership of beneficial interests in a registered global
security will be limited to persons that have accounts with the
depositary for such registered global security, these persons
being referred to as participants, or persons that
may hold interests through participants;
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upon the issuance of a registered global security, the
depositary for the registered global security will credit, on
its book-entry registration and transfer system, the
participants accounts with the respective principal
amounts of the debt securities represented by the registered
global security beneficially owned by the participants;
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any dealers, underwriters, or agents participating in the
distribution of the debt securities will designate the accounts
to be credited; and
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ownership of beneficial interest in the registered global
security will be shown on, and the transfer of such ownership
interest will be effected only through, records maintained by
the depositary for the registered global security for interests
of participants, and on the records of participants for
interests of persons holding through participants.
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The laws of some states may require that specified purchasers of
securities take physical delivery of the securities in
definitive form. These laws may limit the ability of those
persons to own, transfer or pledge beneficial interests in
registered global securities.
So long as the depositary for a registered global security, or
its nominee, is the registered owner of the registered global
security, the depositary or such nominee, as the case may be,
will be considered the sole owner or holder of the debt
securities represented by the registered global security for all
purposes under the indenture. Except as stated below, owners of
beneficial interests in a registered global security:
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will not be entitled to have the debt securities represented by
a registered global security registered in their names;
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will not receive or be entitled to receive physical delivery of
the debt securities in the definitive form; and
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will not be considered the owners or holders of the debt
securities under the relevant indenture.
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Accordingly, each person owning a beneficial interest in a
registered global security must rely on the procedures of the
depositary for the registered global security and, if the person
is not a participant, on the procedures of a participant through
which the person owns its interest, to exercise any rights of a
holder under the indenture.
9
We understand that under existing industry practices, if we
request any action of holders or if an owner of a beneficial
interest in a registered global security desires to give or take
any action that a holder is entitled to give or take under the
indenture, the depositary for the registered global security
would authorize the participants holding the relevant beneficial
interests to give or take the action, and the participants would
authorize beneficial owners owning through the participants to
give or take the action or would otherwise act upon the
instructions of beneficial owners holding through them.
We will make payments of principal and premium, if any, and
interest, if any, on debt securities represented by a registered
global security registered in the name of a depositary or its
nominee to the depositary or its nominee, as the case may be, as
the registered owners of the registered global security. Neither
we nor the trustee, or any other agent of ours or the trustee
will be responsible or liable for any aspect of the records
relating to, or payments made on account of, beneficial
ownership interests in the registered global security or for
maintaining, supervising or reviewing any records relating to
the beneficial ownership interests.
We expect that the depositary for any debt securities
represented by a registered global security, upon receipt of any
payments of principal and premium, if any, and interest, if any,
in respect of the registered global security, will immediately
credit participants accounts with payments in amounts
proportionate to their respective beneficial interests in the
registered global security as shown on the records of the
depositary. We also expect that standing customer instructions
and customary practices will govern payments by participants to
owners of beneficial interests in the registered global security
held through the participants, as is now the case with the
securities held for the accounts of customers in bearer form or
registered in street name. We also expect that any
of these payments will be the responsibility of the participants.
If the depositary for any debt securities represented by a
registered global security is at any time unwilling or unable to
continue as depositary or stops being a clearing agency
registered under the Exchange Act, we will appoint an eligible
successor depositary. If we fail to appoint an eligible
successor depositary within 90 days, we will issue the debt
securities in definitive form in exchange for the registered
global security. In addition, we may at any time and in our sole
discretion decide not to have any of the debt securities of a
series represented by one or more registered global securities.
In that event, we will issue debt securities of the series in a
definitive form in exchange for all of the registered global
securities representing the debt securities. The trustee will
register any debt securities issued in definitive form in
exchange for a registered global security in the name or names
as the depositary, based upon instructions from its
participants, shall instruct the trustee.
We may also issue bearer debt securities of a series in the form
of one or more global securities, referred to as bearer
global securities. We will deposit these securities with a
depositary identified in the prospectus supplement relating to
the series. The prospectus supplement relating to a series of
debt securities represented by a bearer global security will
describe the applicable terms and procedures. These will include
the specific terms of the depositary arrangement and any
specific procedures for the issuance of debt securities in
definitive form in exchange for a bearer global security, in
proportion to the series represented by a bearer global security.
Concerning
the Trustee
The indenture provides that there may be more than one trustee
under the indenture, each for one or more series of debt
securities. If there are different trustees for different series
of debt securities, each trustee will be a trustee of a trust
under the indenture separate and apart from the trust
administered by any other trustee under that indenture. Except
as otherwise indicated in this prospectus or any prospectus
supplement, any action permitted to be taken by a trustee may be
taken by such trustee only on the one or more series of debt
securities for which it is the trustee under the indenture. Any
trustee under the indenture may resign or be removed from one or
more series of debt securities. All payments of principal of,
and any premium and interest on, and all registration, transfer,
exchange, authentication and delivery of, the debt securities of
a series will be effected by the trustee for that series at an
office designated by the trustee in New York, New York.
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The indenture provides that, except during the continuance of an
event of default, the trustee will perform only such duties as
are specifically set forth in the indenture. During the
existence of an event of default, the trustee will exercise
those rights and powers vested in it under the indenture and use
the same degree of care and skill in its exercise as a prudent
person would exercise under the circumstances in the conduct of
such persons own affairs.
If the trustee becomes a creditor of ours, the indenture places
limitations on the right of the trustee to obtain payment of
claims or to realize on property received in respect of any such
claim as security or otherwise. The trustee may engage in other
transactions. If it acquires any conflicting interest relating
to any duties concerning the debt securities, however, it must
eliminate the conflict or resign as trustee.
No
Individual Liability of Incorporators, Stockholders, Officers or
Directors
The indenture provides that no past, present or future director,
officer, stockholder or employee of ours, any of our affiliates,
or any successor corporation, in their capacity as such, shall
have any individual liability for any of our obligations,
covenants or agreements under the debt securities or the
indenture.
Governing
Law
The indenture and the debt securities will be governed by, and
construed in accordance with, the laws of the State of New York.
DESCRIPTION
OF PREFERRED STOCK
As of March 31, 2007, our authorized preferred stock, par
value $0.0001 per share, was 5,000,000 shares, none of
which were 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 the liquidation, dissolution or winding up of, 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.
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The particular terms of any series of preferred stock, and the
transfer agent and registrar for that series, will be described
in a prospectus supplement. All preferred stock offered, when
issued, will be fully paid and nonassessable. Any material
United States federal income tax consequences and other special
considerations with respect to any preferred stock offered under
this prospectus will also be described in the applicable
prospectus supplement.
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DESCRIPTION
OF DEPOSITARY SHARES
The following description of the depositary shares does not
purport to be complete and is subject to and qualified in its
entirety by the relevant deposit agreement and the depositary
receipts with respect to the depositary shares relating to any
particular series of preferred stock. You should read these
documents as they, and not this description, will define your
rights as a holder of depositary shares. Forms of these
documents will be filed with the SEC in connection with the
offering of depositary shares.
General
If we elect to offer fractional interests in shares of preferred
stock, we will provide for the issuance by a depositary to the
public of receipts for depositary shares. Each depositary share
will represent fractional interests of preferred stock. We will
deposit the shares of preferred stock underlying the depositary
shares under a deposit agreement between us and a bank or trust
company selected by us. The bank or trust company must have its
principal office in the United States and a combined capital and
surplus of at least $50 million. The depositary receipts
will evidence the depositary shares issued under the deposit
agreement.
The deposit agreement will contain terms applicable to the
holders of depositary shares in addition to the terms stated in
the depositary receipts. Each owner of depositary shares will be
entitled to all the rights and preferences of the preferred
stock underlying the depositary shares in proportion to the
applicable fractional interest in the underlying shares of
preferred stock. The depositary will issue the depositary
receipts to individuals purchasing the fractional interests in
shares of the related preferred stock according to the terms of
the offering described in a prospectus supplement.
Dividends
and Other Distributions
The depositary will distribute all cash dividends or other cash
distributions received for the preferred stock to the entitled
record holders of depositary shares in proportion to the number
of depositary shares that the holder owns on the relevant record
date. The depositary will distribute only an amount that can be
distributed without attributing to any holder of depositary
shares a fraction of one cent. The depositary will add the
undistributed balance to and treat it as part of the next sum
received by the depositary for distribution to holders of
depositary shares.
If there is a non-cash distribution, the depositary will
distribute property received by it to the entitled record
holders of depositary shares, in proportion, insofar as
possible, to the number of depositary shares owned by the
holders, unless the depositary determines, after consultation
with us, that it is not feasible to make such distribution. If
this occurs, the depositary may, with our approval, sell such
property and distribute the net proceeds from the sale to the
holders. The deposit agreement also will contain provisions
relating to how any subscription or similar rights that we may
offer to holders of the preferred stock will be available to the
holders of the depositary shares.
Conversion,
Exchange, Redemption and Liquidation
If any series of preferred stock underlying the depositary
shares may be converted or exchanged, each record holder of
depositary receipts will have the right or obligation to convert
or exchange the depositary shares represented by the depositary
receipts.
The terms on which the depositary shares relating to the
preferred stock of any series may be redeemed, and any amounts
distributable upon our liquidation, dissolution or winding up,
will be described in the relevant prospectus supplement.
Voting
When the depositary receives notice of a meeting at which the
holders of the preferred stock are entitled to vote, the
depositary will mail the particulars of the meeting to the
record holders of the depositary shares. Each record holder of
depositary shares on the record date may instruct the depositary
on how to vote the shares of preferred stock underlying the
holders depositary shares. The depositary will try, if
practical, to
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vote the number of shares of preferred stock underlying the
depositary shares according to the instructions. We will agree
to take all reasonable action requested by the depositary to
enable it to vote as instructed.
Amendments
We and the depositary may agree to amend the deposit agreement
and the depositary receipt evidencing the depositary shares. Any
amendment that (a) imposes or increases certain fees, taxes
or other charges payable by the holders of the depositary shares
as described in the deposit agreement or that (b) otherwise
prejudices any substantial existing right of holders of
depositary shares, will not take effect until 30 days after
the depositary has mailed notice of the amendment to the record
holders of depositary shares. Any holder of depositary shares
that continues to hold its shares at the end of the
30-day
period will be deemed to have agreed to the amendment.
Termination
We may direct the depositary to terminate the deposit agreement
by mailing a notice of termination to holders of depositary
shares at least 30 days prior to termination. In addition,
a deposit agreement will automatically terminate if:
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the depositary has redeemed all related outstanding depositary
shares, or
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we have liquidated, terminated or wound up our business and the
depositary has distributed the preferred stock of the relevant
series to the holders of the related depositary shares.
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Payment
of Fees and Expenses
We will pay all fees, charges and expenses of the depositary,
including the initial deposit of the preferred stock and any
redemption of the preferred stock. Holders of depositary shares
will pay transfer and other taxes and governmental charges and
any other charges as are stated in the deposit agreement for
their accounts.
Resignation
and Removal of Depositary
At any time, the depositary may resign by delivering notice to
us, and we may remove the depositary. Resignations or removals
will take effect upon the appointment of a successor depositary
and its acceptance of the appointment. The successor depositary
must be appointed within 60 days after delivery of the
notice of resignation or removal and must be a bank or trust
company having its principal office in the United States and
having a combined capital and surplus of at least
$50 million.
Reports
The depositary will forward to the holders of depositary shares
all reports and communications from us that are delivered to the
depositary and that we are required by law, the rules of an
applicable securities exchange or our restated certificate of
incorporation to furnish to the holders of the preferred stock.
Neither we nor the depositary will be liable if the depositary
is prevented or delayed by law or any circumstances beyond its
control in performing its obligations under the deposit
agreement. The deposit agreement limits our obligations and the
depositarys obligations to performance in good faith of
the duties stated in the deposit agreement. Neither we nor the
depositary will be obligated to prosecute or defend any legal
proceeding connected with any depositary shares or preferred
stock unless the holders of depositary shares requesting us to
do so furnish us with satisfactory indemnity. In performing our
obligations, we and the depositary may rely upon the written
advice of our counsel or accountants, on any information that
competent people provide to us and on documents that we believe
are genuine.
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DESCRIPTION
OF COMMON STOCK
This section describes the general terms and provisions of the
shares of our common stock, par value $0.0001 per share.
This description is only a summary and is qualified in its
entirety by reference to the description of our common stock
incorporated by reference in this prospectus. Our restated
certificate of incorporation and our 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 bylaws for
additional information before you buy any of our common stock or
other securities. See Where You Can Find More
Information.
We have 100,000,000 shares of authorized common stock. As
of March 31, 2007, there were 24,570,241 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.
Certain
Provisions of Delaware Law and of the Charter and
Bylaws
The provisions of Delaware law, our restated certificate of
incorporation and our 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.
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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.
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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 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.
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Transfer
Agent
The transfer agent and registrar for our common stock is
Computershare Trust Company, Inc.
DESCRIPTION
OF WARRANTS
We may issue warrants for the purchase of debt securities,
preferred stock, common stock, depositary shares, or any
combination thereof. We may issue warrants independently or
together with any other securities offered by any prospectus
supplement and may be attached to or separate from the other
offered securities. Each series of warrants will be issued under
a separate warrant agreement to be entered into by us with a
warrant agent. The warrant agent will act solely as our agent in
connection with the warrants and will not assume any obligation
or relationship of agency or trust for or with any holders or
beneficial owners of warrants. Further terms of the warrants and
the applicable warrant agreements will be set forth in the
applicable prospectus supplement.
The applicable prospectus supplement relating to any particular
issue of warrants will describe the terms of the warrants,
including, as applicable, the following:
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the title of the warrants;
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the aggregate number of the warrants;
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the price or prices at which the warrants will be issued;
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the designation, terms and number of shares of debt securities,
preferred stock or common stock purchasable upon exercise of the
warrants;
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the designation and terms of the offered securities, if any,
with which the warrants are issued and the number of the
warrants issued with each offered security;
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the date, if any, on and after which the warrants and the
related debt securities, preferred stock or common stock will be
separately transferable;
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the price at which each share of debt securities, preferred
stock or common stock purchasable upon exercise of the warrants
may be purchased;
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the date on which the right to exercise the warrants shall
commence and the date on which that right shall expire;
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the minimum or maximum amount of the warrants which may be
exercised at any one time;
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information with respect to book-entry procedures, if any;
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a discussion of certain federal income tax
considerations; and
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any other terms of the warrants, including terms, procedures and
limitations relating to the exchange and exercise of the
warrants.
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We and the warrant agent may amend or supplement the warrant
agreement for a series of warrants without the consent of the
holders of the warrants issued thereunder to effect changes that
are not inconsistent with the provisions of the warrants and
that do not materially and adversely affect the interests of the
holders of the warrants.
PLAN OF
DISTRIBUTION
We may sell the securities 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 securities 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 securities
offered in the prospectus supplement may be listed.
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Only those underwriters identified in such prospectus supplement
are deemed to be underwriters in connection with the securities
offered in the prospectus supplement.
The distribution of the securities 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 securities may be sold
through a rights offering, forward contracts or similar
arrangements. In connection with the sale of the securities,
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 securities 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.
16
Some of the underwriters, dealers or agents who participate in
the securities distribution 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 securities offering, and any discounts, concessions or
commissions which underwriters allow to dealers. Underwriters,
dealers and agents participating in the securities distribution
may be deemed to be underwriters, and any discounts and
commissions they receive and any profit they realize on the
resale of the securities 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 securities may or may not be listed on a national securities
exchange. In connection with an offering, the underwriters may
purchase and sell securities 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 securities 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 securities 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 securities 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 the
securities. As a result, the price of the securities 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 any securities 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
for the year ended December 31, 2006, and Genomic Health,
Inc. managements assessment of the effectiveness of
internal control over financial reporting as of
December 31, 2006 included therein, have been audited by
Ernst & Young LLP, independent registered public
accounting firm, as set forth in their reports therein, included
therein, and incorporated herein by reference. Such consolidated
financial statements and managements assessment referred
to above are incorporated herein by reference in reliance upon
such reports given on the authority of such firm 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
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
17
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, 2006, filed on
March 16, 2007, as amended on March 23, 2007 and
April 6, 2007; 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.
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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.
18
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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$
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3,070
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The NASDAQ Stock Market Listing
Fees*
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60,000
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Transfer Agent and Registrar,
Trustee and Depositary 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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12,000
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Miscellaneous*
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4,930
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$
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225,000
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Item 15. Indemnification
of Directors and Officers.
Section 145 of the Delaware General Corporation Law
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. Article VIII of the Registrants
Restated Certificate of Incorporation, Exhibit 3.3 to the
Registrants Registration Statement on
Form S-1
(File
No. 333-126626)
declared effective on September 28, 2005, and
Article 5 of the Registrants Amended and Restated
Bylaws, Exhibit 3(ii) to the Registrants Current
Report on
Form 8-K
filed on May 2, 2006, 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
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1
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.1*
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Form of Underwriting Agreement.
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4
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.1**
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Form of Indenture relating to debt
securities.
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4
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.2*
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Form of supplemental indenture or
other instrument establishing the issuance of one or more series
of debt securities (including the form of such debt security).
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4
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.3*
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Form of Warrant Agreement and
Warrant Certificate.
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4
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.4*
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Form of Deposit Agreement.
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4
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.5*
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Form of Depositary Receipt
(included in Exhibit 4.4).
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4
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.6*
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Form of Specimen Preferred Stock
Certificate.
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4
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.7
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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
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.1**
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Opinion of Pillsbury Winthrop Shaw
Pittman LLP.
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12
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.1**
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Statement regarding computation of
ratios.
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23
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.1**
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Consent of Pillsbury Winthrop Shaw
Pittman LLP (included in Exhibit 5.1).
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23
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.2**
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Consent of Ernst & Young
LLP, Independent Registered Public Accounting Firm.
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II-1
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Exhibit No.
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Description
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24
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.1**
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Power of Attorney.
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25
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.1+
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Form T-1
Statement of Eligibility of the trustee for the debt securities.
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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. |
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To be filed by amendment or pursuant to Trust Indenture Act
Section 305(b)(2), if applicable. |
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) 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).
(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
II-2
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
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) To file an application for the purpose of
determining the eligibility of the trustee to act under
subsection (a) of Section 310 of the
Trust Indenture Act (the Act) in accordance
with the rules and regulations prescribed by the Commission
under Section 305(b)(2) of the Act.
(7) That, for the 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
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
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 Amendment to Registration Statement to
be signed on its behalf by the undersigned, thereunto duly
authorized in the City of Redwood City, State of California, on
April 24, 2007.
GENOMIC HEALTH, INC.
Randal W. Scott, Ph.D.
Chief Executive Officer
(Principal Executive Officer)
Pursuant to the requirements of the Securities Act of 1933, this
Amendment to Registration Statement has been signed by the
following persons in the capacities and on the dates indicated.
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Signature
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Title
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Date
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/s/ Randal
W. Scott
Randal
W. Scott, Ph.D.
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Chief Executive Officer and
Chairman of the Board (Principal Executive Officer)
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April 24, 2007
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/s/ G.
Bradley Cole
G.
Bradley Cole
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Executive Vice President and Chief
Financial Officer (Principal Financial and Accounting Officer)
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April 24, 2007
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*
Kimberly
J. Popovits
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President, Chief Operating Officer
and Director
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April 24, 2007
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*
Julian
C. Baker
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Director
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April 24, 2007
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*
Brook
H. Byers
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Director
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April 24, 2007
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*
Fred
E. Cohen, M.D., Ph.D.
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Director
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April 24, 2007
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*
Samuel
D. Colella
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Director
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April 24, 2007
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*
Michael
D. Goldberg
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Director
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April 24, 2007
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*
Randall
S. Livingston
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Director
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April 24, 2007
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*
Woodrow
A. Myers, Jr., M.D.
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Director
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April 24, 2007
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*By
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/s/ Randal
W. Scott
Randal
W. Scott, Ph.D.
Attorney-in-Fact
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II-4
EXHIBIT INDEX
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Exhibit No.
|
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Description
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1
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.1*
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Form of Underwriting Agreement.
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4
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.1**
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|
Form of Indenture relating to debt
securities.
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4
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.2*
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|
Form of supplemental indenture or
other instrument establishing the issuance of one or more series
of debt securities (including the form of such debt security).
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4
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.3*
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Form of Warrant Agreement and
Warrant Certificate.
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4
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.4*
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Form of Deposit Agreement.
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4
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.5*
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Form of Depositary Receipt
(included in Exhibit 4.4).
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4
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.6*
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Form of Specimen Preferred Stock
Certificate.
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4
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.7
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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
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.1**
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Opinion of Pillsbury Winthrop Shaw
Pittman LLP.
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12
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.1**
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Statement regarding computation of
ratios.
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23
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.1**
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Consent of Pillsbury Winthrop Shaw
Pittman LLP (included in Exhibit 5.1).
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23
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.2**
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Consent of Ernst & Young
LLP, Independent Registered Public Accounting Firm.
|
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24
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.1**
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Power of Attorney.
|
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25
|
.1+
|
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Form T-1
Statement of Eligibility of the trustee for the debt securities.
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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. |
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+ |
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To be filed by amendment or pursuant to Trust Indenture Act
Section 305(b)(2), if applicable. |