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As filed with the Securities and Exchange Commission on September 14, 2000
Registration No. 333-_____
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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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TITLE OF EACH CLASS PROPOSED MAXIMUM PROPOSED MAXIMUM
OF SECURITIES TO BE AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING AMOUNT OF
REGISTERED REGISTERED (1) PER SHARE (2) PRICE (2) REGISTRATION FEE
-------------- ---------------- ------------------ ----------------
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Common Stock, $0.01 par value 350,000 $64.4688 $22,564,080 $5,957
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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 $64.4688 per share, which was the average of the high and
low prices of the common stock reported by the Nasdaq Stock Market on
September 11, 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 September 14, 2000
MYRIAD GENETICS, INC.
350,000 SHARES OF COMMON STOCK
This prospectus covers the sale by Acqua Wellington North American Equities
Fund, Ltd. of 350,000 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 September 13, 2000, the closing sale price of our common stock
on the Nasdaq National Market was $60 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
Selling Stockholder......................................................................... 13
Plan of Distibution......................................................................... 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.
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.
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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(TM) 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.
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. 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 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 COLARIS(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:
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. obtain and maintain strategic collaborations;
. identify drug targets and lead compounds that may lead to future
therapeutic products; and
. create and introduce additional marketable molecular diagnostic tests.
Because of financial and regulatory obstacles, 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. We may not
be able to develop or successfully commercialize any potential therapeutic
products.
Our potential therapeutic products 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:
. our 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 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. 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.
Our success depends on maintaining relationships with current collaborative
partners and entering into new collaborative arrangements
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 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
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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 commercial
market acceptance
We may not succeed in achieving commercial market acceptance of any of our
products. Physicians, patients, payors and the medical community in general may
be unwilling to accept, utilize or recommend any of our products. The commercial
success of BRACAnalysis(R), CardiaRisk(R), COLARIS(TM) and other molecular
diagnostic tests or therapeutic products that we may develop will depend, in
part, upon 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. We will have to expend
substantial financial resources to promote the benefits of our BRACAnalysis(R),
CardiaRisk(R), and COLARIS(TM) tests and any future molecular diagnostic tests
or therapeutic products we may develop, to conduct clinical trials to
demonstrate the utility of these tests and to educate physicians, patients,
payors and the medical community in general regarding these tests. Our failure
to achieve market acceptance for any or all of our tests would have a material
adverse effect on our business.
Failure of patients to obtain adequate reimbursement from third-party payors
could limit market acceptance of our diagnostic tests and therapeutic products,
which would materially adversely affect our business
Third-party payors may not provide full reimbursement coverage for our
diagnostic tests or therapeutic products, if at all. Government and private
third-party payors are increasingly attempting to contain health care costs by
limiting both the extent of coverage and the reimbursement rate for new
diagnostic and therapeutic products and services. For example, to date no third-
party payors have been willing to reimburse patients for CardiaRisk(R). If
adequate reimbursement coverage is not available from third-party payors,
patients may not be willing or able to pay directly for our tests and products
and their market acceptance will likely be adversely impacted, which would have
a material adverse effect on our business. The scope and extent of coverage by
third-party payors are likely to heavily influence physicians' decisions to
recommend our diagnostic tests and therapeutic products.
Molecular diagnostic test results are difficult to interpret and may make
molecular diagnostic tests difficult or less desirable to perform, which would
limit their commercial success
A defective gene may malfunction in many different ways, and the many mutated
versions of the gene may make a molecular diagnostic test difficult to perform
and interpret. Accordingly, physicians and their patients may not use our
current or prospective diagnostic products, which would limit the commercial
success of these products. For example, genes such as the BRCA1 and BRCA2 breast
and ovarian cancer genes, which form the basis for the BRACAnalysis(R) test, are
complex and may have numerous mutations. Approximately 500 mutations of the
BRCA1 and BRCA2 genes have been identified to date. Until a mutation has been
characterized, researchers cannot state with certainty the risk it poses for an
individual. Further, even when a molecular diagnostic test identifies the
existence of a mutation in a particular individual, the interpretation of the
molecular diagnostic test results is limited
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to the identification of a statistical probability, but in no event a certainty,
that the tested individual will develop the disease for which the test has been
completed.
We are subject to intense scientific and commercial competition, which may
impair our ability 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.
Our ability to discover genes and commercialize therapeutic and diagnostic
products could be adversely affected if our current collaborators or scientific
advisors terminate their relationships with us or develop relationships with a
competitor
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
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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.
We may need to raise additional funding to expand our business, which funding
may not be available
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 additional cash resources. If adequate funds are not available, we
may be required to scale down research and development programs, curtail capital
expenditures and reduce marketing and other operating expenses. We have funded
our operations to date primarily through equity and lease financings and
corporate collaborations. In order to grow and expand our business, we may need
to raise additional funds. Our future capital requirements will depend on many
factors, including, but not limited to:
. the continued scientific progress in our research and development
programs;
. the cost and timing of preclinical studies, clinical trials and regulatory
approvals;
. our ability to maintain current, and establish additional, collaborative
relationships;
. competing technological and market developments;
. effective commercialization activities and expansion of facilities, as
required; and
. the costs and timing of patent prosecutions.
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. This additional funding may not be available to us or, if
available, it may not be on reasonable terms. Some of our currently targeted
gene discovery research programs will be dependent on funding from collaborative
partners. If we are not successful in finding, entering into and maintaining
arrangements with collaborative partners, our development efforts could be
delayed, scaled down or terminated.
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
COLARIS(TM). 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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Commercialization of therapeutic products developed by us or our collaborative
partners is dependent upon regulatory approval
In addition, prior to marketing in the United States any therapeutic product
developed by us or our collaborative partners, such product would have to
undergo an extensive regulatory approval process governed by the FDA, including
extensive preclinical and clinical trials. The regulatory process, which
includes preclinical testing and clinical trials of each therapeutic product and
each indication in order to establish its safety and efficacy, can take many
years and requires the expenditure of substantial financial and other resources.
We and our collaborative partners have not begun clinical testing of any
collaborative therapeutic products, and such testing may not begin for many
years. The data obtained from preclinical and clinical activities is susceptible
to varying interpretations, which could delay, limit or prevent regulatory
agency approval. In addition, delays or rejections may be encountered during the
period of therapeutic development, including delays during the period of review
of any application. Delays in obtaining regulatory approvals could adversely
affect the marketing of any therapeutics developed by us or our collaborative
partners, impose costly procedures upon us and our collaborative partners'
activities, diminish any competitive advantages that we or our collaborative
partners may attain and adversely affect our ability to receive royalties. 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. Any applicable federal, state or local licensure
requirements may not be met or any such regulations may be modified and we may
not be able to comply with any new or modified regulation. Failure to comply
with any material governmental regulation could have a material adverse effect
on our business.
Ethical, legal and social implications of molecular diagnostic testing are
currently being widely discussed and may be unfavorably resolved
The prospect of broadly available molecular diagnostic testing has raised
issues that are currently being widely discussed by the medical and scientific
communities, as well as by other interested groups and organizations, regarding
the appropriate utilization and the confidentiality of information provided by
this testing. 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. For these reasons, we could experience a delay or
reduction in test acceptance, which could materially adversely affect our
business.
We may not be able to protect our proprietary technology, which may limit or
eliminate our rights to our products
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.
8
<PAGE>
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 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.
We may be subject to patent infringement actions by third parties that could
result in 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.
We depend on attracting and retaining key personnel and consultants and we have
no post-employment non-competition agreements
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.
9
<PAGE>
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 our supplies of sequencing
machines and reagents, which would adversely affect our ability to identify
genes if these supplies become unavailable
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.
Our business exposes us to potential liability claims that may exceed our
financial resources, including our insurance coverage, and may lead to the
curtailment or termination of our operations
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;
10
<PAGE>
. 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, and we assume no obligation to update them or to explain the reasons
why actual results may differ. 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.
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 August 29, 2002.
The following table shows information, as of September 1, 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 (2)
-------- -------------- ------------
<S> <C> <C> <C>
NAME OF SELLING STOCKHOLDER NUMBER PERCENT (1) NUMBER PERCENT
Acqua Wellington North American Equities Fund, Ltd. 350,000 1.6% 350,000 0 -
</TABLE>
(1) Percentage of ownership prior to the offering is based on 22,269,640 shares
of common stock outstanding on September 1, 2000.
(2) 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. Annual Report on Form 10-K for the year ended June 30, 2000 filed
on September 13, 2000;
2. Definitive Proxy Statement for Special Meeting of Stockholders,
filed on July 27, 2000;
3. Definitive Proxy Statement for Annual Meeting of Stockholders,
filed on November 15, 1999; and
4. 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................. $ 5,957
Financial printing expenses.......... $ 2,500
Legal fees and expenses.............. $ 25,000
Accounting fees and expenses......... $ 4,500
Miscellaneous fees and expenses...... $ 2,043
Total................................ $ 40,000
========
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<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.
<TABLE>
<CAPTION>
Exhibit Description
------- -------------------------------------------------------------------------
Number
------
<S> <C>
(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 August 28, 2000 between the Company and Acqua Wellington North
America Equities Fund, Ltd.
(4.5)*** Registration Rights Agreement dated as of August 28, 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.
*** 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.
</TABLE>
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 any decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any derivation from the low end 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
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.
18
<PAGE>
(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.
(b) Insofar as indemnification for liabilities arising under the Act 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 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.
(d) The undersigned Registrant hereby undertakes to deliver or cause to be
delivered with the prospectus, to each person to whom the prospectus is sent or
given, the latest annual report to security holders that is incorporated by
reference in the prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the Securities Exchange Act of
1934; and, where interim financial information required to be presented by
Article 3 of Regulation S-X is not set forth in the prospectus, to deliver, or
cause to be delivered to each person to whom the prospectus is sent or given,
the latest quarterly report that is specifically incorporated by reference in
the prospectus to provide such interim financial information.
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 September 14, 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
Statement, 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 by 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.
Signature Title(s) Date
--------- -------- ----
/s/ Peter D. Meldrum President, Chief Executive September 14, 2000
---------------------- Officer and Director
Peter D. Meldrum (principal executive
officer)
/s/ Jay M. Moyes Vice President of Finance September 14, 2000
---------------------- and Chief Financial
Jay M. Moyes Officer (principal
financial and accounting
officer)
/s/ John J. Horan Chairman of the Board September 14, 2000
----------------------
John J. Horan
/s/ Walter Gilbert Vice Chairman of the Board September 14, 2000
----------------------
Walter Gilbert, Ph.D
20
<PAGE>
/s/ Mark H. Skolnick Chief Scientific Officer September 14, 2000
---------------------- and Director
/s/ Arthur H. Hayes, Jr. Director September 14, 2000
------------------------
Arthur H. Hayes, Jr., M.D.
/s/ Dale A. Stringfellow Director September 14, 2000
------------------------
Dale A. Stringfellow, Ph.D.
/s/ Alan J. Main Director September 14, 2000
------------------------
Alan J. Main, Ph.D.
/s/ Michael J. Berendt Director September 14, 2000
------------------------
Michael J. Berendt, Ph.D.
/s/ Linda S. Wilson Director September 14, 2000
------------------------
Linda S. Wilson, Ph.D.
21
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Description
------- ----------------------------------------------------
Number
------
<S> <C>
(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 August 28, 2000 between the Company and Acqua Wellington North
America Equities Fund, Ltd.
(4.5)*** Registration Rights Agreement dated as of August 28, 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.
*** 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.
</TABLE>
