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As filed with the Securities and Exchange Commission on November 22, 2000
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Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
MYRIAD GENETICS, INC.
(Exact name of registrant as specified in its charter)
Delaware
(State or other jurisdiction of
incorporation or organization)
87-0494517
(I.R.S. Employer
Identification Number)
320 Wakara Way
Salt Lake City, UT 84108
(801) 584-3600
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
Peter D. Meldrum
President and Chief Executive Officer
Myriad Genetics, Inc.
320 Wakara Way
Salt Lake City, UT 84108
(801) 584-3600
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
With a copy to:
Andrew J. Merken, Esquire
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
One Financial Center
Boston, Massachusetts 02111
(617) 542-6000
Approximate date of commencement of proposed sale to the public: As soon as
practical after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
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, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
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<S> <C> <C> <C> <C>
TITLE OF EACH CLASS PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
OF SECURITIES TO BE AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING REGISTRATION
REGISTERED REGISTERED (1) PER SHARE (2) PRICE (2) FEE
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Common Stock $0.01 par value 400,000 $73.75 $29,500,000 $7,788
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(1) Includes an indeterminate number of shares of common stock as may from
time to time be issued by reason of stock splits, stock dividends and other
similar transactions, which shares are registered hereunder pursuant to
Rule 416.
(2) The price of $73.75 per share, which was the average of the high and
low prices of the common stock reported by the Nasdaq Stock Market on
November 21, 2000, is set forth solely for the purpose of calculating the
registration fee in accordance with Rule 457(c) of the Securities Act of
1933, as amended.
The Registrant hereby amends this Registration Statement on such date or dates
as may be necessary to delay its effective date until the Registrant shall file
a further amendment which specifically states that this Registration Statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
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++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+ The information in this prospectus is not complete and may be changed. The +
+ selling stockholder may not sell these securities until the registration +
+ statement filed with the Securities and Exchange Commission is effective. +
+ This prospectus is not an offer to sell these securities and it is not +
+ soliciting an offer to buy these securities in any state where the offer or +
+ sale is not permitted. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
PROSPECTUS
Subject to Completion dated November 22, 2000
MYRIAD GENETICS, INC.
400,000 SHARES OF COMMON STOCK
This prospectus covers the sale by Acqua Wellington North American Equities
Fund, Ltd. of 400,000 shares of common stock.
We will not receive any of the proceeds from the sale of common stock by the
selling stockholder.
Our common stock is listed on the Nasdaq National Market under the symbol
"MYGN." On November 21, the closing sale price of our common stock on the Nasdaq
National Market was $71.13 per share.
Investing in our common stock involves risks. See "Risk Factors" beginning on
page 3.
Neither the Securities and Exchange Commission nor any state securities
regulators has approved or disapproved of these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
_________________, 2000
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TABLE OF CONTENTS
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Prospectus Summary...................................................... 1
Risk Factors............................................................ 3
Cautionary Note on Forward-Looking Statements........................... 12
Trademarks.............................................................. 12
Selling Stockholder..................................................... 13
Plan of Distribution.................................................... 14
Legal Matters........................................................... 14
Experts................................................................. 14
Where to Find More Information.......................................... 15
Incorporation of Documents by Reference................................. 15
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You may rely only on the information contained in this prospectus. We have not
authorized anyone to provide information different from that contained in this
prospectus. This prospectus is not an offer to sell nor is it seeking an offer
to buy these securities in any jurisdiction where the offer or sale is not
permitted. The information contained in this prospectus is correct only as of
the date of this prospectus, regardless of the time of the delivery of this
prospectus or any sale of these securities.
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PROSPECTUS SUMMARY
You must also consult the more detailed financial statements, and notes to
financial statements, incorporated by reference in this prospectus. This
prospectus contains forward-looking statements and actual results could differ
materially from those projected in the forward-looking statements as a result of
certain of the risk factors as outlined in this prospectus.
The Company
We are a leader in the use of gene-based medicine to develop novel
therapeutic and molecular diagnostic products. We are focused on the emerging
field of proteomics, which involves establishing the relationship between
protein function and particular diseases by identifying disease-specific
proteins. We employ a variety of proprietary proteomic technologies to discover
important disease genes and to understand the role these genes and their related
proteins play in the onset and progression of disease. We have integrated these
technologies using powerful bioinformatics and robotics systems to conduct our
research efforts on a high-throughput basis. This integrated proteomics platform
has enabled us to identify numerous proteins as promising targets for new
proprietary drugs and molecular diagnostic tests.
Using our proprietary technologies, we have identified 22 drug targets to
date. We have delivered 13 of these drug targets to our strategic partners based
on our discovery of genes involved in breast cancer, brain cancer, prostate
cancer, heart disease, dementia and other disorders. We have received total
payments from our seven current strategic partners in excess of $100 million. We
will receive additional milestone and royalty payments if our strategic partners
develop and commercialize drugs from the thirteen targets we have delivered to
them. Our current partners include Bayer Corporation, Eli Lilly and Company,
Hitachi Ltd., Hoffmann-LaRoche Inc., Pharmacia Corporation, Novartis
Corporation, Schering-Plough Corporation and Schering AG. We have also
established a portfolio of nine new drug targets that we have retained for our
own small molecule drug development program. We expect to independently develop,
test and commercialize small molecule therapeutics from drug targets selected
from our internal portfolio, particularly in the area of cancer. Outside of the
oncology area, we expect to enter into future strategic partnerships for the
clinical development of many of these targets.
We also focus on developing, marketing and selling molecular diagnostic
products for predictive medicine and personalized medicine. We have developed
and commercialized two innovative molecular diagnostic tests, one of which is
used for analyzing breast and ovarian cancer susceptibility and the other for
therapeutic management of hypertensive patients. In August 2000, we announced
the future launch of a predictive medicine test for hereditary colon cancer and
uterine cancer. Revenues from these proprietary tests grew approximately 70%
from the prior year to $8.8 million in the fiscal year ended June 30, 2000.
Our business strategy is to understand the relationship between proteins
and diseases in order to develop the next generation of therapeutic and
molecular diagnostic products and includes the following key elements:
. Expand our proprietary proteomic databases. We will continue to expand
our existing proprietary genetic and medical databases in Utah and
Quebec, which accelerate our protein discovery efforts and are useful in
target validation, pharmacogenomics and disease association studies.
. Discover important disease genes, understand their function and identify
lead compounds. We will expand ProNet(R), our proprietary proteomic
database, which is used to discover disease pathways, understand protein
function and identify high quality drug targets. We will also continue
to employ our ProTrap technology for high-throughput screening for lead
compound identification.
. Selectively develop and commercialize therapeutic products. We intend to
take selected compounds, particularly in the area of cancer, through the
clinical development process. We are focusing on cancer due to the large
unmet need for effective, less toxic drugs, the potential for fast track
status that the FDA has typically afforded novel cancer drugs and our
ability to leverage the expertise of our existing oncology sales force.
. Capitalize on our strategic alliances with major pharmaceutical
companies. We expect to maintain and expand our strategic alliances. As
we identify and develop lead compounds, we plan to enter into strategic
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alliances with major pharmaceutical companies to diversify the risk of
clinical stage drug development and to benefit from our potential
partners' development expertise and marketing strength.
. Grow and expand our molecular diagnostic business. We will continue to
increase the domestic and foreign market penetration of our existing
molecular diagnostic tests and create additional tests to capitalize on
the emergence of predictive and personalized medicine.
We are a Delaware corporation. Our principal executive offices are located
at 320 Wakara Way, Salt Lake City, Utah 84108. Our telephone number is (801)
584-3600. Our website is http://www.myriad.com. The information found on our
website is not intended to be a part of this prospectus.
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RISK FACTORS
You should carefully consider the following risk factors and all other
information contained in this prospectus before purchasing our common stock.
Investing in our common stock involves a high degree of risk. If any of the
following risks actually occurs, we may not be able to conduct our business as
currently planned and our financial condition and operating results could be
seriously harmed. In that case, the market price of our common stock could
decline, and you could lose all or part of your investment. See "Special Note
Regarding Forward-Looking Statements."
We are a company in the early stages of development and commercialization and
may never achieve the goals of our business plan.
We may be unable to continue to successfully develop or commercialize our
technologies. Our technologies are still in the early stages of development and
we have only recently begun to incorporate them into commercialized products.
We began operations in 1991 and have been engaged primarily in research
directed toward the discovery and sequencing of genes that predispose people to
common diseases and the development of molecular diagnostic tests and
therapeutic products. In October 1996 we introduced for commercial use
BRACAnalysis(R), our first diagnostic test. In January 1998 we introduced for
commercial use CardiaRisk(R), our second diagnostic test. In August 2000, we
announced the launch of COLARISO(TM), our most recent diagnostic test to be
introduced.
We are beginning early stage preclinical development of therapeutic
products for cancer and have delivered several drug targets to our collaborators
for further development by them. Any therapeutic products under development by
us or our collaborators will take several more years to develop and undergo
extensive preclinical and clinical testing. Additionally, therapeutic products
are subject to substantial regulatory review. We or any of our collaborators may
be unable to discover or develop any therapeutic or additional diagnostic
products through the utilization of our technologies. Even if we or our
collaborators develop products for commercial use, we or they may not, however,
be able to develop products that:
. meet applicable regulatory standards, in a timely manner or at all;
. successfully compete with other technologies and products;
. avoid infringing the proprietary rights of others;
. are manufacturable in sufficient quantities or at reasonable cost; or
. are successfully marketed.
We have a history of operating losses and expect to continue to incur losses in
the future.
We have a limited operating history and have experienced operating losses
since our inception. We expect these losses to continue for the next several
years and we may never be profitable or achieve significant revenues. For
example, we experienced net losses of $8,722,102 during the year ended June 30,
2000, $9,995,453 during the year ended June 30, 1999 and $9,797,035 during the
year ended June 30, 1998. We had an accumulated deficit of $52,661,982 as of
June 30, 2000. In order to develop and commercialize our technologies, we expect
to incur significant increases in our expenses over the next several years. In
addition, we expect significant increases in expenses in connection with our
internal research programs and any therapeutic product that we independenty seek
to develop, test and commercialize. As a result, we expect to incur operating
losses at least for the foreseeable future. Our ability to achieve significant
revenues or profitability will depend upon numerous factors, including, our
ability to:
. obtain and maintain strategic collaborations;
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. identify drug targets and lead compounds that may lead to future
therapeutic products; and
. create and introduce additional marketable molecular diagnostic tests.
If we or our collaborative partners are unable to overcome financial and
regulatory obstacles, including those that arise in connection with new
technologies, then we may never be able to develop commercially viable
therapeutic products.
We are currently initiating the development of potential therapeutic
products, which will require significant research and development expenditures,
extensive preclinical and clinical testing and regulatory approvals. Preclinical
and clinical testing will require the expenditure of significant funds. Even
after spending significant funds, we may not be able to develop or successfully
commercialize any potential therapeutic products.
Therapeutic products that we or our collaborative partners may develop will
be subject to the risks of failure inherent in the development of therapeutic
products based on new technologies. These risks include the possibilities that:
. potential therapeutic products will be found to be unsafe or ineffective
or otherwise fail to receive necessary regulatory clearances;
. the products, if safe and effective, will be difficult to manufacture on
a large scale or uneconomical to market;
. proprietary rights of third parties will preclude us or our partners
from marketing our products; or
. third parties will market superior or equivalent products.
In addition, before receiving all required FDA approvals to market any
product, we or our partners will have to demonstrate that the product is safe
and effective on the patient population and for the diseases that would be
treated. The clinical testing, manufacturing and marketing of products are
subject to the rigorous testing and approval process of the FDA and equivalent
foreign regulatory authorities, which can take many years and requires the
expenditure of substantial financial and other resources. We or our
collaborative partners may never obtain regulatory approvals for any products
that we develop. Moreover, if regulatory approval of a product is granted, this
approval may impose limitations on the indicated uses for which it may be
marketed. Further, even if such regulatory approval is obtained, a marketed
product and its manufacturer are subject to continuing review, and the discovery
of previously unknown problems with a product or manufacturer may result in
restrictions on such product or manufacturer, including withdrawal of the
product from the market.
Clinical trials or marketing of any potential therapeutic products may
expose us to liability claims from the use of these therapeutic products. We may
not be able to obtain product liability insurance or, if obtained, sufficient
coverage may not be available at a reasonable cost. In addition, as we develop
therapeutic products internally, we will have to make significant investments in
therapeutic product development, marketing, sales and regulatory compliance
resources. We will also have to establish or contract for the manufacture of
products, including supplies of drugs used in clinical trials, under the current
good manufacturing practices of the FDA, which can be time consuming and costly.
If we are unable to maintain relationships with current collaborative partners
or enter into new collaborative arrangements, then our business will be harmed.
We currently depend heavily and will depend heavily in the future on third
parties for support in product development, manufacturing, marketing and
distribution. Part of our current business strategy is to form collaborative
arrangements with strategic partners to develop and commercialize therapeutic
products based on our gene discoveries. We may not be able to maintain our
current collaborative arrangements or negotiate additional
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acceptable collaborative arrangements in the future.
The research phase of our collaborations expire after a fixed term. In
particular, the research phase of our collaborations with Schering-Plough
Corporation and with Novartis Corporation each ended successfully in April 2000.
Any current or future collaborative arrangement may not be successful. Failure
of any collaborative arrangement, or termination by any of our collaborative
partners of their respective agreements, could have a material adverse effect on
our business. Further, additional milestone payments and future potential
royalty payments from our collaborators are dependent upon their continuing to
develop products based on the potential therapeutic targets we delivered to
them. These partners may decide not to develop any products based on these
targets. Even if these partners commence such development, they could decide to
terminate it at any time.
In addition, our collaborative partners may pursue alternative technologies
or develop alternative products either on their own or in collaboration with
others, including our competitors, as a means of developing diagnostic products
or treatments for the diseases targeted by the collaborative programs. Our
interests may not continue to coincide with those of our collaborative partners,
and some of our collaborative partners may develop, independently or with third
parties, therapeutic or diagnostic products that could compete with those
developed in collaboration with our partners or independently. Additionally,
disputes over rights or technology or other proprietary interests may arise.
Such disputes or disagreements between us and our collaborative partners could
lead to delays in collaborative research projects, or could result in litigation
or arbitration, any of which could have a material adverse effect on our
business. In addition, there have been a significant number of recent
consolidations among pharmaceutical companies. These consolidations among the
companies with which we are collaborating could result in the diminution or
termination of, or delays in, the development or commercialization of the
products or research programs under one or more of our collaborative agreements.
BRACAnalysis(R), CardiaRisk(R), COLARIS(TM) and any other molecular diagnostic
tests or therapeutic products that we may develop may never achieve significant
commercial market acceptance.
We may not succeed in achieving significant commercial market acceptance of
any of our products. While we have marketed BRACAnalysis for several years and
have gained some acceptance with oncologists and surgeons, we need to convince
the larger group of obstetricians/gynecologists and primary care physicians of
the benefits of BRACAnalysis in order to increase our sales of the test. We
introduced our newer products CardiaRisk in August 1998 and COLARIS in August
2000 and may not succeed in achieving commercial acceptance of either test. Our
ability to successfully commercialize BRACAnalysis, CardiaRisk and COLARIS, as
well as any other molecular diagnostic tests or therapeutic products that we may
develop, will depend on several factors, including:
. Our ability to convince the medical community of the safety and clinical
efficacy of our products and their potential advantages over existing
therapeutic products and diagnostic techniques.
. The agreement by third-party payors to provide, full or even partial
reimbursement coverage for our products, the scope and extent of which will
affect patients willingness or ability to pay for our tests and will
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likely heavily influence physicians' decisions to recommend our products. To
date, no third-party payors have been willing to reimburse patients for
CardiaRisk.
. The willingness of physicians and patients to utilize molecular
diagnostic tests which are difficult to perform and interpret. This difficulty
is caused by a combination of factors, including the large number, sometimes
many hundreds, of different mutations in the genes which our tests analyze, the
need to characterize each specific mutation, and the ability of our tests to
predict only as to a statistical probability, not certainty, that a tested
individual will develop the disease for which the test has been completed.
These factors present obstacles to significant commercial acceptance of our
tests, which we will have to spend substantial time and money to overcome, if we
can do so at all. Our inability to successfully do so will harm our business.
If we do not compete effectively with scientific and commercial competitors, we
may not be able to successfully commercialize our products.
Research in the field of genomics and proteomics is intense and highly
competitive. This research is characterized by rapid technological change. Our
competitors in the United States and abroad are numerous and include, among
others, major pharmaceutical and diagnostic companies, biotechnology firms,
universities and other research institutions, including those receiving funding
from the Human Genome Project. Many of our potential competitors have
considerably greater financial, technical, marketing and other resources than we
do, which may allow these competitors to discover important genes and determine
their function before we do. We could be adversely affected if we do not
discover genes, characterize their function, develop therapeutic and diagnostic
products based on these discoveries, obtain regulatory and other approvals and
launch these products and their related services before our competitors. We also
expect to encounter significant competition with respect to any therapeutic or
diagnostic products that we may develop or commercialize. Those companies that
complete clinical trials, obtain required regulatory approvals and commence
commercial sales of therapeutic products before we do may achieve a significant
competitive advantage in marketing and commercializing their products. We or our
collaborative partners may not be able to develop therapeutic or diagnostic
products successfully and may not obtain patents covering these products that
provide protection against our competitors. Moreover, our competitors may
succeed in developing therapeutic or diagnostic products that circumvent our
technologies or products. Or, our competitors may succeed in developing
technologies or products that are more effective than those developed by us and
our collaborative partners or that would render technology or products of us and
our collaborators less competitive or obsolete. We expect competition to
intensify in the fields in which we are involved as technical advances in these
fields occur and become more widely known.
If our current collaborators or scientific advisors terminate their
relationships with us or develop relationships with a competitor, our ability to
discover genes and commercialize therapeutic and diagnostic
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products could be adversely affected.
We have relationships with collaborators at academic and other institutions
who conduct research at our request. These collaborators are not our employees.
As a result, we have limited control over their activities and, except as
otherwise required by our collaboration agreements, can expect only limited
amounts of their time to be dedicated to our activities. We have established
collaborations with the University of Utah, Intermountain Health Care, and
Galileo Genomics, Inc. to pursue the discovery of genes involved in cancer,
cardiovascular disease, obesity, osteoporosis, asthma, and certain central
nervous system disorders. Our ability to discover genes involved in human
disease and commercialize therapeutic and diagnostic products will depend in
part on the continuation of these collaborations. If any of these collaborations
are terminated, we may not be able to enter into other acceptable
collaborations. In addition, our existing collaborations may not be successful.
Our research collaborators and scientific advisors may have relationships
with other commercial entities, some or all of which could compete with us. Our
research collaborators and scientific advisors sign agreements which provide for
the confidentiality of our proprietary information and the results of studies
conducted at our request. We may not, however, be able to maintain the
confidentiality of our technology and other confidential information in
connection with every collaboration. The dissemination of our confidential
information could have a material adverse effect on our business.
The termination of one or more license agreements that are important in our
research and development activities would harm our business.
We are a party to various license agreements under which we have rights to
use certain technologies owned by other companies in our proprietary research,
development and testing processes. One of these agreements, with Roche Molecular
Systems, Inc., is of material importance to us and is renewable on an annual
basis at the option of both parties. We may not be able to continue to license
this technology or, if the license were terminated, find suitable alternatives
to this technology on timely or commercially reasonable terms, if at all. The
loss of the right to use this technology that we have licensed would harm our
business.
If our current operating plan changes and we find that our existing capital
resources will not meet our needs, we may find it necessary to raise additional
funding , which funding may not be available.
We anticipate that our existing capital resources will enable us to maintain
currently planned operations for at least the next two years. However, we base
this expectation on our current operating plan, which may change. We have
incurred, and will continue to incur, significant costs in the discovery,
development and marketing of current and prospective therapeutic and diagnostic
products. Our ongoing gene discovery programs and our efforts to develop
therapeutic products and molecular diagnostic tests will require substantial
cash resources. If, for example, a new disease gene is discovered through these
efforts, we would require funds in addition to our current operating plan to
develop and launch a new molecular diagnostic product. Additionally, if we
discover a new drug target with promising therapeutic properties, we would
require funding in addition to our current operating plan to move the candidate
drug into preclinical studies and human clinical trials. If, due to changes in
our current operating plan, adequate funds are not available, we may be required
to raise additional funds. Sources of additional capital resources include, but
are not limited to, public or private equity financings, establishing a credit
facility, or selling convertible debt securities. This additional funding may
not be available to us or, if available, it may not be on reasonable terms.
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Because of our potential long-term capital requirements, we may access the
public or private equity markets whenever conditions are favorable, even if we
do not have an immediate need for additional capital at that time. If additional
funds are raised by issuing equity securities, existing shareholders may suffer
significant dilution.
If we are unable to comply with applicable governmental regulations, we may not
be able to continue our operations.
The establishment and operation of our molecular diagnostic laboratory and
the production and marketing of services and products developed through our
technologies, as well as our ongoing research and development activities, are
subject to regulation by numerous federal, state and local governmental
authorities in the United States and by comparable regulatory agencies in other
countries where we or any collaborative partner might seek to market services
and products that may be developed. On the state level, only New York has
implemented regulations concerning molecular diagnostic testing and we have been
accredited under the Clinical Laboratory Evaluation Program by the Department of
Health of the State of New York for BRACAnalysis(R), CardiaRisk(R), and
COLARISO. Failure to maintain state regulatory compliance, or changes in state
regulatory schemes, could result in a substantial curtailment or even
prohibition of Myriad Laboratories' clinical activities and could have a
material adverse effect on our business. We have received federal accreditation
from the Department of Health and Human Services under the Clinical Laboratory
Improvement Amendments, or CLIA, to operate our molecular diagnostic laboratory.
However, our accreditation may subsequently be revoked, suspended or limited, or
our accreditation may not be renewed on an annual basis as required.
Furthermore, while the U.S. Food and Drug Administration has elected not to
substantially regulate the activities or diagnostic tests performed by
laboratories like our clinical laboratory, the FDA has stated that it has the
right to do so, and the FDA may seek to regulate or require clearance or
approval of our tests in the future. If the FDA should require that these tests
receive FDA approval prior to their use in our laboratory, this approval may not
be received on a timely basis, if at all.
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If the FDA decides to regulate molecular diagnostic testing , or if groups such
as insurance companies and employers discriminate against individuals with a
genetic predisposition to a disease, then demand for our molecular diagnostic
tests may decrease.
Molecular diagnostic testing has raised ethical issues regarding
confidentiality and the appropriate uses of information provided by this
testing. For these reasons, governmental authorities place restrictions on, or
regulate the use of, molecular diagnostic testing. Also, it is possible that
discrimination by insurance companies against patients shown to have a genetic
predisposition to a particular disease could occur through the raising of
premiums by insurers to prohibitive levels, outright cancellation of insurance
or unwillingness to provide coverage. We could experience a delay in market
penetration or a reduction in the size of our potential serviceable market,
which would adversely affect future revenue, if insurance discrimination were to
become a significant barrier to testing acceptance. Similarly, employers could
discriminate against employees with a genetic predisposition to a disease due to
the increased risk for disease resulting in possible cost increases for health
insurance and the potential for lost employment time. Any of these scenarios
could cause us to experience a delay or reduction in test acceptance, which
could materially adversely affect our business.
If we are not able to protect our proprietary technology, our business will be
harmed and we may not remain competitive.
Our success will depend, in part, on our ability to obtain patent
protection, both in the United States and in other countries, for genes we
discover, for the function of the protein produced by the genes and related
technologies, processes, methods and other inventions that we believe are
patentable. Our ability to preserve our trade secrets and other intellectual
property is also critical to our long-term success. The patent position of
biotechnology firms generally is highly uncertain and involves complex legal and
factual questions. To date there has not emerged from the United States Patent
and Trademark Office, or PTO, or the courts a consistent policy regarding the
breadth of claims allowed in biotechnology patents. Our or our licensors' patent
applications may never issue as patents, and the claims of any issued patents
may not afford meaningful protection for our technology or products. In
addition, any patents issued to us or our licensors may be challenged, and
subsequently narrowed, invalidated or circumvented.
Our products may also conflict with patents that have been or may be granted
to others. As the biotechnology industry expands and more patent applications
are filed and patents are issued, the risk increases that our products may give
rise to a declaration of interference by the PTO, or to claims of patent
infringement by other companies, institutions or individuals. These entities or
persons could bring legal proceedings against us seeking damages or seeking to
enjoin us from testing, manufacturing or marketing our products. Patent
litigation is costly, and even if we prevail, the cost of such litigation could
have a material adverse effect on us. If the other parties in any such actions
are successful, in addition to any liability for damages, we could be required
to cease the infringing activity or obtain a license. Any license required may
not be available to us on acceptable terms, if at all. Our failure to obtain a
license to any technology that we may require to commercialize our products
could have a material adverse effect on our business. In addition, there is
considerable pressure on academic institutions to publish discoveries in the
genetic field. Such a publication by an academic collaborator of ours, prior to
the filing of a patent application on this discovery, may compromise our ability
to obtain U.S. and foreign patent protection for the discovery.
If a third party files a patent application with claims to a gene or protein
we have discovered, the PTO may
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declare an interference between competing patent applications. If an
interference is declared, we may not prevail in the interference. If the other
party prevails in the interference, we may be precluded from commercializing
services or products based on the gene or protein, or may be required to seek a
license. A license may not be available to us on commercially acceptable terms,
if at all.
We also rely upon unpatented proprietary technologies. We may not be able to
adequately protect our rights in such unpatented proprietary technologies, which
could have a material adverse effect on our business. For example, others may
independently develop substantially equivalent proprietary information or
techniques or otherwise gain access to our proprietary technologies or disclose
our technologies to our competitors.
If we were sued for patent infringement by third parties, we might incur
significant costs and delays in product introduction.
Our industry includes many organizations seeking to rapidly identify and
characterize genes through the use of gene expression analysis and other
technologies. To the extent any patents are issued to those organizations on
partial or full-length genes or uses for such genes, the risk increases that the
sale of our diagnostic products currently being marketed or under development,
and any sales of therapeutic drugs developed by us or our collaborators, may
give rise to claims of patent infringement. Others may have filed and in the
future are likely to file patent applications covering genes or gene products
that are similar or identical to our products. Any of these patent applications
may have priority over our patent applications. Any legal action against us or
our collaborators claiming damages and seeking to enjoin commercial activities
relating to the affected products and processes could, in addition to subjecting
us to potential liability for damages, require us or our collaborators to obtain
a license in order to continue to manufacture or market the affected products
and processes or could enjoin us from continuing to manufacture or market the
affected products and processes, thereby significantly increasing our costs
associated with, and significantly delaying, product introduction and marketing.
We or our collaborators may not prevail in any of these actions and any license
required under any of these patents may not be available on commercially
acceptable terms, if at all. We believe that there may be significant litigation
in the industry regarding patent and other intellectual property rights. If we
become involved in this litigation, it could consume a substantial portion of
our managerial and financial resources.
If we fail to retain our key personnel and hire, train and retain qualified
employees and consultants, we may not be able to successfully continue our
business.
Because of the specialized scientific nature of our business, we are highly
dependent upon our ability to attract and retain qualified management,
scientific and technical personnel. We are currently recruiting additional
qualified management, scientific and technical personnel. Competition for such
personnel is intense. Loss of the services of or failure to recruit additional
key management, scientific and technical personnel would adversely affect our
research and development programs and molecular diagnostic testing and
information business and may have a material adverse effect on our business.
Our agreements with our employees generally provide for employment that can
be terminated by either party without cause at any time, subject to specified
notice requirements. Further, the non-competition provision to which each
employee is subject expires on the applicable date of termination of employment.
We depend on a limited number of third parties for some of our supplies of
equipment and reagents. If these supplies become unavailable, then we may not be
able to successfully perform our research or operate our business at all or on a
timely basis.
We currently rely on two suppliers to provide our gene sequencing machines
and reagents required in connection with our research. We believe that currently
there are limited alternative suppliers of gene sequencing machines and
reagents. The gene sequencing machines or the reagents may not remain available
in commercial quantities at acceptable costs. If we are unable to obtain when
needed additional gene sequencing machines or an adequate supply of reagents or
other ingredients at commercially reasonable rates, our ability to continue to
identify genes and perform molecular diagnostic testing would be adversely
affected.
10
<PAGE>
If we were successfully sued for product liability, we could face substantial
liabilities that exceed our resources.
Our business exposes us to potential liability risks inherent in the
testing, marketing and processing of molecular diagnostic products, including
possible misdiagnoses. Although we are insured against such risks up to a
$13,000,000 annual aggregate limit in connection with the use of our products,
our present product liability insurance may be inadequate. A successful product
liability claim in excess of our insurance coverage could have a material
adverse effect on our business. Any successful product liability claim may
prevent us from obtaining adequate product liability insurance in the future on
commercially desirable or reasonable terms. An inability to obtain sufficient
insurance coverage at an acceptable cost or otherwise to protect against
potential product liability claims could prevent or inhibit the
commercialization of our products. Our business also may expose us to liability
inherent in the testing, manufacturing and marketing of prospective therapeutic
products. Liability claims may be asserted against us. We have obtained product
liability and other related insurance, but we may not be able to maintain this
insurance on acceptable terms.
Our business involves environmental risks that may result in liability for
us.
In connection with our research and development activities, we are subject
to federal, state and local laws, rules, regulations and policies governing the
use, generation, manufacture, storage, air emission, effluent discharge,
handling and disposal of certain materials, biological specimens and wastes.
Although we believe that we have complied with the applicable laws, regulations
and policies in all material respects and have not been required to correct any
material noncompliance, we may be required to incur significant costs to comply
with environmental and health and safety regulations in the future. Although we
believe that our safety procedures for handling and disposing of controlled
materials comply with the standards prescribed by state and federal regulations,
accidental contamination or injury from these materials may occur. In the event
of such an occurrence, we could be held liable for any damages that result and
any such liability could exceed our resources.
Our stock price is highly volatile and our stock may lose all or a significant
part of its value after this offering.
The market prices for securities of biotechnology and genomic companies
have been volatile. This volatility has significantly affected the market prices
for these securities for reasons frequently unrelated to the operating
performance of the specific companies. These broad market fluctuations may
adversely affect the market price of our common stock. The market price for our
common stock has fluctuated significantly since public trading commenced in
October 1995, and it is likely that the market price will continue to fluctuate
in the future. In addition, the stock market has experienced extreme price and
volume fluctuations. Events or factors that may have a significant impact on our
business and on the market price of our common stock include the following:
. quarterly fluctuations in operating results;
. announcements by us, our collaborative partners or our present or
potential competitors;
. technological innovations or new commercial products or services;
. regulatory approval developments;
. developments or disputes concerning patent or proprietary rights; or
. public concern regarding the safety, efficacy or other implications of
the products or services developed or to be developed by us or our
collaborators.
11
<PAGE>
CAUTIONARY NOTE ON FORWARD-LOOKING STATEMENTS
This prospectus and the documents incorporated by reference contain
forward-looking statements within the meaning of Section 27A of the Securities
Act of 1933 and within the meaning of Section 21E of the Securiries Exchange Act
of 1934. We have based these forward-looking statements on our current
expectations and projections about future events. These forward-looking
statements include, but are not limited to, statements concerning payments to be
received under agreements with our collaborative partners, as well as our plans
to:
. continue development of our current products under development;
. conduct clinical trials with respect to our products under development;
. utilize our capital resources and the net proceeds from this offering
and the time periods related thereto;
. engage third-party manufacturers to supply our clinical trials and
commercial requirements;
. seek regulatory approvals;
. establish a marketing and distribution capability for future therapeutic
products that we independently develop; and
. evaluate additional products under development for subsequent clinical
and commercial development.
In some cases, you can identify forward-looking statements by terminology
such as "may," "will," "should," "potential," "continue," "expects,"
"anticipates," "intends," "plans," "believes," "estimates" and similar
expressions. These statements are based on our current beliefs, expectations and
assumptions and are subject to a number of risks and uncertainties. Actual
results and events may vary significantly from those discussed in the forward-
looking statements. A description of certain risks that could cause our results
to vary appears under the caption "Risk Factors" and elsewhere in this
prospectus. These forward-looking statements are made as of the date of this
prospectus. In light of these assumptions, risks and uncertainties, the results
and events discussed in the forward-looking statements contained in this
prospectus might not occur.
TRADEMARKS
Myriad(R), our graphical logo device, BRACAnalysis(R), CardiaRisk(R),
ProNet(R), ProTrap(TM), and COLARIS(TM) are trademarks of Myriad Genetics, Inc.
Other trademarks used in this prospectus are the property of their respective
owners. The domain names and website addresses "www.myriad.com" and "www.myriad-
pronet.com," and all rights thereto, are registered in the name of and owned by
Myriad Genetics, Inc.
12
<PAGE>
SELLING STOCKHOLDER
The common stock offered in this prospectus was issued by us to the selling
stockholder in a transaction exempt from the registration requirements of the
Securities Act. The selling stockholder, including its transferees, pledgees or
donees or their successors, may from time to time offer and sell any or all of
the common stock.
The selling stockholder has represented to us that it purchased the common
stock for its own account for investment only and not with a view toward selling
or distributing the shares, except through sales registered under the Securities
Act or exemptions. We agreed with the selling stockholder to file this
registration statement to register the resale of the common stock. We agreed to
prepare and file all necessary amendments and supplements to the registration
statement to keep it effective until the earlier of (i) the date that all common
stock covered by this registration statement has been sold or (ii) the date that
all common stock covered by this registration statement can be sold without any
restriction pursuant to Rule 144(k).
The following table shows information, as of November 9, 2000, with respect
to the selling stockholder and the principal amounts of our common stock it
beneficially owns and the number of shares that may be offered under this
prospectus. The information is based on information provided by or on behalf of
the selling stockholder.
The selling stockholder may offer all, some or none of the common stock.
Thus, we cannot estimate the amount of the common stock that will be held by the
selling stockholder upon termination of any sales. The selling stockholder has
not had any material relationship with us or our affiliates within the past
three years.
<TABLE>
<CAPTION>
SHARES OWNED AFTER
SHARES OWNED PRIOR TO MAXIMUM NUMBER OF COMPLETION OF THE
OFFERING SHARES OFFERED OFFERING (3)
-------- -------------- ------------
<S> <C> <C> <C> <C>
NAME OF SELLING STOCKHOLDER NUMBER PERCENT (2) NUMBER PERCENT
Acqua Wellington North American Equities Fund, Ltd. (1) 750,000 3.3% 400,000 350,000 1.5%
</TABLE>
(1) Mr. Anthony L.M. Inder Rieden, a Director of Acqua Wellington North
American Equities Fund, Ltd., has voting and investment power over the
shares.
(2) Percentage of ownership prior to the offering is based on 22,745,459 shares
of common stock outstanding on November 9, 2000.
(3) Number of shares and percentage after completion of the offering assumes
that all of the shares held by the selling stockholder and being offered under
this prospectus are sold, that the shares are sold to unaffiliated third parties
and that the selling stockholder acquires no additional shares of common stock
before completion of this offering.
13
<PAGE>
PLAN OF DISTRIBUTION
We are registering the shares of common stock on behalf of the selling
stockholder. The shares of common stock may be sold in one or more transactions
at fixed prices, at prevailing market prices at the time of sale, at prices
related to the prevailing market prices, at varying prices determined at the
time of sale, or at negotiated prices. These sales may be effected at various
times in one or more of the following transactions, or in other kinds of
transactions:
. transactions on the Nasdaq National Market or on any national securities
exchange or U.S. inter-dealer system of a registered national securities
association on which our common stock may be listed or quoted at the time of
sale;
. in the over-the-counter market;
. in private transactions and transactions otherwise than on these exchanges or
systems or in the over-the-counter market;
. in connection with short sales of the shares;
. by pledge to secure debt and other obligations;
. through the writing of options, whether the options are listed on an options
exchange or otherwise;
. in connection with the writing of non-traded and exchange-traded call options,
in hedge transactions and in settlement of other transactions in standardized
or over-the-counter options; or
. through a combination of any of the above transactions.
The selling stockholder and its successors, including its transferees,
pledgees or donees or their successors, may sell the common stock directly to
purchasers or through underwriters, broker-dealers or agents, who may receive
compensation in the form of discounts, concessions or commissions from the
selling stockholder or the purchasers. These discounts, concessions or
commissions as to any particular underwriter, broker-dealer or agent may be in
excess of those customary in the types of transactions involved.
In addition, any securities covered by this prospectus which qualify for sale
pursuant to Rule 144 of the Securities Act may be sold under Rule 144 rather
than pursuant to this prospectus.
We entered into a registration rights agreement for the benefit of the selling
stockholder to register our common stock under applicable federal and state
securities laws. The registration rights agreement provides for cross-
indemnification of the selling stockholder and us and our respective directors,
officers and controlling persons against specific liabilities in connection with
the offer and sale of the common stock, including liabilities under the
Securities Act. We will pay substantially all of the expenses incurred by the
selling stockholder incident to the offering and sale of the common stock.
LEGAL MATTERS
The validity of the shares of common stock offered in this prospectus will
be passed upon for Myriad Genetics, Inc. by Mintz, Levin, Cohn, Ferris, Glovsky
and Popeo, P.C. of Boston, Massachusetts. Certain attorneys at Mintz, Levin,
Cohn, Ferris, Glovsky and Popeo, P.C. beneficially own an aggregate of 2,000
shares of common stock of Myriad Genetics, Inc.
EXPERTS
The consolidated financial statements of Myriad Genetics, Inc. as of June
30, 2000 and 1999 and for each of the years in the three-year period ended June
30, 2000 have been incorporated by reference herein and in the registration
statement in reliance on the report of KPMG LLP, independent certified public
accountants, incorporated by reference herein, and upon the authority of said
firm, as experts in accounting and auditing.
14
<PAGE>
WHERE TO FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the Securities and Exchange Commission, or SEC. You may read
and copy any document we file a the public reference facilities of the SEC
located at 450 Fifth Street, N.W., Washington, D.C. 20549. You may obtain
information on the operation of the SEC's public reference facilities by calling
the SEC at 1-800-SEC-0330. You can also access copies of such material
electronically on the SEC's home page on the World Wide Web at
http;//www.sec.gov. Reports, proxy statements and other information concerning
us is also available for inspection at the National Association of Securties
Dealers, Inc. at 1835 K Street, N.W., Washington, D.C., 20006.
This prospectus is only part of a Registration Statement on Form S-3 that
we have filed with the SEC under the Securities Act and therefore omits certain
information contained in the Registration Statement. We have also filed exhibits
and schedules with the Registration Statement that are excluded from this
prospectus, and you should refer to the applicable exhibit or schedule for a
complete description of any statement referring to any contract or other
document. You may inspect a copy of the Registration Statement, including the
exhibits and schedules, without charge at the public reference room, or obtain a
copy from the SEC upon payment of the fee prescribed by the SEC. You may also
view the Registration Statement, including the exhibits and schedules, on the
SEC's web site at www.sec.gov.
INCORPORATION OF DOCUMENTS BY REFERENCE
This prospectus is part of a Registration Statement on Form S-3 that we
have filed with the SEC. The SEC permits us to "incorporate by reference" the
information that we file with them, which means that we can disclose important
information to you by referring you to those documents. The information
incorporated by reference is considered to be part of this prospectus, and
information that we file with the SEC after the date of this prospectus will
automatically update and supersede this information. We incorporate by reference
the following documents filed by us with the SEC (File No. 0-26642). We also
incorporate by reference any future filings made with the SEC under Section
13(a), 13(c), 14 or 15(d) of the Securties Exchange Act of 1934, after the date
of this prospectus until the termination of this offering.
1. Amendment No.1 to Form 10-K on Form 10-K/A for the year ended June 30,
2000 filed November 15, 2000;
2. Annual Report on Form 10-K for the year ended June 30, 2000 filed on
September 13, 2000;
3. Quarterly Report on Form 10-Q for the quarter ended September 30, 2000
filed on November 14, 2000;
4. Definitive Proxy Statement for Special Meeting of Stockholders, filed
on July 27, 2000;
5. Definitive Proxy Statement for Annual Meeting of Stockholders, filed
on October 13, 2000; and
6. The description of the common stock contained in our Registration
Statement on Form 8-A filed with the SEC on August 17, 1995 including
any amendments or reports filed for the purpose of updating such
description.
15
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth the Company's estimates (other than the SEC
registration fee) of the expenses in connection with the issuance and
distribution of the shares of common stock being registered. None of the
following expenses are being paid by the selling stockholder.
Item Amount
---- ------
SEC registration fee................. $ 7,788
Financial printing expenses.......... $ 2,500
Legal fees and expenses.............. $25,000
Accounting fees and expenses......... $ 4,500
Miscellaneous fees and expenses...... $ 2,212
-------
Total............ $42,000
=======
16
<PAGE>
Item 15. Indemnification of Directors and Officers.
Section 145(a) of the General Corporation Law of the State of Delaware
provides that a Delaware corporation may indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation) by
reason of the fact that he is or was a director, officer, employee or agent of
the corporation or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation or enterprise,
against expenses, judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or proceeding if
he acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the corporation, and, with respect to any
criminal action or proceeding, had no cause to believe his conduct was unlawful.
Section 145(b) provides that a Delaware corporation may indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that such
person acted in any of the capacities set forth above, against expenses actually
and reasonably incurred by him in connection with the defense or settlement of
such action or suit if he acted under similar standards, except that no
indemnification may be made in respect of any claim, issue or matter as to which
such person shall have been adjudged to be liable to the corporation unless and
only to the extent that the court in which such action or suit was brought shall
determine that despite the adjudication of liability, such person is fairly and
reasonably entitled to be indemnified for such expenses which the court shall
deem proper.
Section 145 further provides that to the extent a director or officer of a
corporation has been successful in the defense of any action, suit or proceeding
referred to in subsections (a) and (b) or in the defense of any claim, issue or
matter therein, he shall be indemnified against expenses actually and reasonably
incurred by him in connection therewith; that indemnification provided for by
Section 145 shall not be deemed exclusive of any other rights to which the
indemnified party may be entitled; and that the corporation may purchase and
maintain insurance on behalf of a director or officer of the corporation against
any liability asserted against him or incurred by him in any such capacity or
arising out of his status as such whether or not the corporation would have the
power to indemnify him against such liabilities under such Section 145.
The Restated Certificate of Incorporation, as amended, and Restated By-laws
of the Company provide for indemnification of the Company's directors and
officers to the fullest extent permitted by law. The Restated Certificate of
Incorporation, as amended, and the Restated By-laws also permit the Board of
Directors to authorize the Company to purchase and maintain insurance against
any liability asserted against any director, officer, employee or agent of the
Company arising out of his capacity as such. Insofar as indemnification for
liabilities under the Securities Act may be permitted to directors, officers, or
controlling persons of the Company pursuant to the Company's Restated
Certificate of Incorporation, as amended, its Restated By-laws and the Delaware
General Corporation Law, the Company has been informed that in the opinion of
the Commission such indemnification is against public policy as expressed in
such Act and is therefore unenforceable.
As permitted by Section 102(b)(7) of the Delaware General Corporation Law,
the Company's Restated Certificate of Incorporation, as amended, provides that
directors of the Company shall not be personally liable to the Company or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except for liability (i) for any breach of the director's duty of loyalty to the
Company or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the Delaware General Corporation Law, relating to prohibited
dividends or distributions or the repurchase or redemption of stock or (iv) for
any transaction from which the director derives an improper personal benefit. As
a result of this provision, the Company and its stockholders may be unable to
obtain monetary damages from a director for breach of his or her duty of care.
17
<PAGE>
Item 16. Exhibits.
Exhibit Description
------- -----------------------------------------
Number
------
(4.1(a))*** Restated Certificate of Incorporation of the Registrant
(4.1(b))*** Certificate of Amendment of Restated Certificate of Incorporation
of the Registrant
(4.2)** Restated By-laws of the Company
(4.3)# Form of Common Stock Certificate
(4.4) Purchase Agreement dated as of October 27, 2000 between the Company
and Acqua Wellington North America Equities Fund, Ltd.
(4.5) Registration Rights Agreement dated as of October 27, 2000 between
the Company and Acqua Wellington North America Equities Fund, Ltd.
(5.1) Opinion of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
regarding legality
(23.1) Consent of KPMG LLP
(23.2) Consent of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. (see
Exhibit 5.1)
(24.1) Power of Attorney (included on signature page)
*** Previously filed and incorporated herein by reference from the Company's
Form 10-K for the fiscal year ended June 30, 2000.
** Previously filed and incorporated herein by reference from the Company's
Form 10-Q for the period ending September 30, 1995.
# Previously filed and incorporated herein by reference from the Company's
Registration Statement on Form S-1, File No. 33-95970.
Item 17. Undertakings.
(a) 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 Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more than
a 20% change in the maximum aggregate offering price set forth 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 (a)(1)(i) and (a)(1)(ii) do not apply if
the registration statement is on Form S-3 or Form S-8, and the information
required to be included in a post-effective amendment by those paragraphs
is contained in periodic reports filed with or furnished to the 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.
(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
18
<PAGE>
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) If the registrant is a foreign private issuer, to file a post-
effective amendment to the registration statement to include any financial
statements required by Item 8.A of Form 20-F at the start of any delayed
offering or through a continuous offering. Financial statements and
information otherwise required by Section 10(a)(3) of the Act need not be
furnished, provided that the registrant includes in the prospectus, by
means of a post-effective amendment, financial statements required pursuant
to this paragraph (a)(4) and other information necessary to ensure that all
other information in the prospectus is a least as current as the date of
those financial statements. Notwithstanding the foregoing, with respect to
registration statements on Form F-3, a post-effective amendment need not be
filed to include financial statements and information required by Section
10(a)(3) of the Act or Item 8.A. of Form 20-F if such financial statements
and information are contained in periodic reports filed with or furnished
to the 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 Form F-3.
(b) 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 the foregoing provisions, 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 Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the 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 Act and will
be governed by the final adjudication of such issue.
(c) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
19
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Salt Lake City, State of Utah on November 22, 2000.
Myriad Genetics, Inc.
By: /s/ Peter D. Meldrum
------------------------------------
Peter D. Meldrum
President and Chief Executive Officer
POWER OF ATTORNEY
The registrant and each person whose signature appears below constitutes
and appoints Peter D. Meldrum and Jay M. Moyes and each of them singly, his, her
or its true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him, her or it and in his, her or its name,
place and stead, in any and all capacities, to sign and file (i) any and all
amendments (including post-effective amendments) to this Registration Statment,
with all exhibits thereto, and other documents in connection therewith, and (ii)
a registration statement, and any and all amendments thereto, relating to the
offering covered hereby filed pursuant to Rule 462(b) under the Securities Act
of 1933, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite or necessary to be done in
and about the premises, as fully to all intents and purposes as he, she, or it
might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents or any of them, or their or his substitute or
substitutes, may lawfully do or cause to be done virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title(s) Date
--------- -------- ----
<S> <C> <C>
/s/ Peter D. Meldrum President, Chief Executive November 22, 2000
------------------------ Officer and Director
Peter D. Meldrum (principal executive
officer)
/s/ Jay M. Moyes Vice President of Finance November 22, 2000
------------------------ and Chief Financial
Jay M. Moyes Officer (principal
financial and accounting
officer)
/s/ John J. Horan Chairman of the Board November 22, 2000
------------------------
John J. Horan
/s/ Walter Gilbert, Ph.D Vice Chairman of the Board November 22, 2000
------------------------
Walter Gilbert, Ph.D
</TABLE>
20
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
/s/ Mark H. Skelnick, Ph.D. Chief Scientific Officer November 22, 2000
----------------------------------
Mark H. Skelnick, Ph.D. and Director
/s/ Arthur H. Hayes, Jr., M.D. Director November 22, 2000
----------------------------------
Arthur H. Hayes, Jr., M.D.
/s/ Dale A. Stringfellow, Ph.D. Director November 22, 2000
----------------------------------
Dale A. Stringfellow, Ph.D.
/s/ Alan J. Main, Ph.D. Director November 22, 2000
----------------------------------
Alan J. Main, Ph.D.
/s/ Michael J. Berendt, Ph.D. Director November 22, 2000
----------------------------------
Michael J. Berendt, Ph.D.
/s/ Linda S. Wilson, Ph.D Director November 22, 2000
----------------------------------
Linda S. Wilson, Ph.D.
</TABLE>
21
<PAGE>
EXHIBIT INDEX
Exhibit Description
------- -----------------------------------
Number
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(4.1(a))*** Restated Certificate of Incorporation of the Registrant
(4.1(b))*** Certificate of Amendment of Restated Certificate of Incorporation of
the Registrant
(4.2)** Restated By-laws of the Company
(4.3)# Form of Common Stock Certificate
(4.4) Purchase Agreement dated as of October 27, 2000 between the Company
and Acqua Wellington North America Equities Fund, Ltd.
(4.5) Registration Rights Agreement dated as of October 27, 2000 between
the Company and Acqua Wellington North America Equities Fund, Ltd.
(5.1) Opinion of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
regarding legality
(23.1) Consent of KPMG LLP
(23.2) Consent of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. (see
Exhibit 5.1)
(24.1) Power of Attorney (included on signature page)
*** Previously filed and incorporated herein by reference from the Company's
Form 10-K for the fiscal year ended June 30, 2000.
** Previously filed and incorporated herein by reference from the Company's
Form 10-Q for the period ending September 30, 1995.
# Previously filed and incorporated herein by reference from the Company's
Registration Statement on Form S-1, File No. 33-95970.
