-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, RHSTBlqKgeogYGY3PCCL5ZkIteRFkj47ul8ccBMMUSPy/GfPcu/K/79WdzM6Y4NQ AHA4bIg1lMNYVcggUAYGNg== 0000891836-00-000279.txt : 20000410 0000891836-00-000279.hdr.sgml : 20000410 ACCESSION NUMBER: 0000891836-00-000279 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 20000407 EFFECTIVENESS DATE: 20000407 FILER: COMPANY DATA: COMPANY CONFORMED NAME: AFFYMETRIX INC CENTRAL INDEX KEY: 0000913077 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-COMMERCIAL PHYSICAL & BIOLOGICAL RESEARCH [8731] IRS NUMBER: 770319159 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-34320 FILM NUMBER: 596252 BUSINESS ADDRESS: STREET 1: 3380 CENTRAL EXPRESSWAY CITY: SANTA CLARA STATE: CA ZIP: 95051 BUSINESS PHONE: 4085226000 MAIL ADDRESS: STREET 1: 3380 CENTRAL EXPRESSWAY CITY: SANTA CLARA STATE: CA ZIP: 95051 S-8 1 REGISTRATION STATEMENT ON FORM S-8 As filed with the Securities and Exchange Commission on April 7, 2000 Registration No. 333- ================================================================================ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ------------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ------------- AFFYMETRIX, INC. (Exact name of registrant as specified in its charter) DELAWARE 77-0319159 (State or other jurisdiction (IRS Employer of incorporation or organization) Identification No.) 3380 CENTRAL EXPRESSWAY SANTA CLARA, CA 95051 (Address of principal executive offices) (Zip Code) ------------- AFFYMETRIX, INC. GMS/AFFYMETRIX 1998 STOCK PLAN (Full title of the Plan) ------------- VERN NORVIEL SENIOR VICE PRESIDENT, GENERAL COUNSEL and CORPORATE SECRETARY AFFYMETRIX, INC. 3380 CENTRAL EXPRESSWAY SANTA CLARA, CA 95051 (Name and address of agent for service) (408) 731-5000 (Telephone number, including area code, of agent for service) -------------
CALCULATION OF REGISTRATION FEE ==================================================================================================================================== Proposed Maximum Proposed Maximum Amount to be Offering Price per Aggregate Offering Amount of Title of Securities to be Registered Registered(1) Share(2) Price(2) Registration Fee - ----------------------------------------------------- ------------------ ------------------- --------------------- ----------------- Options N/A N/A N/A N/A Common Stock (par value $.01), together with attached rights to purchase Series B Junior Participating Preferred Stock 65,828 $37.82509 $2,489,950.34 $657.35 ==================================================================================================================================== (1) This Registration Statement covers shares of Common Stock of Affymetrix, Inc. and the attached rights to purchase Series B Junior Participating Preferred Stock of Affymetrix, Inc. which may be offered or sold pursuant to the GMS/Affymetrix 1998 Stock Plan. This Registration Statement shall also cover any additional shares of Common Stock which become issuable under the GMS/Affymetrix 1998 Stock Plan by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without the receipt of consideration which results in an increase in the number of the outstanding shares of Common Stock of Affymetrix, Inc. (2) Calculated solely for purposes of this offering under Rule 457(h) of the Securities Act of 1933, as amended, based upon the price at which the options may be exercised. The aggregate exercise price for all shares being registered pursuant to this Registration statement is equal to $2,489,950.34, and the weighted exercise price for those shares is $37.82509.
PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE Affymetrix, Inc. (the "Registrant") hereby incorporates by reference into this Registration Statement the following documents previously filed with the Securities and Exchange Commission (the "SEC"): a. The Registrant's Annual Report on Form 10-K for the fiscal year ended December 31, 1999; b. (1) The Registrant's Current Report on Form 8-K, filed with the SEC on February 11, 2000; (2) The Registrant's Current Report on Form 8-K, filed with the SEC on April 7, 2000; c. The Registrant's Registration Statement No. 0-28218 on Form 8-A filed with the SEC on April 16, 1996 pursuant to Section 12 of the Securities Exchange Act of 1934, as amended (the "1934 Act"), together with amendments thereto, in which there is described the terms, rights and provisions applicable to the Registrant's outstanding Common Stock; All reports and definitive proxy or information statements filed pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act after the date of this Registration Statement and prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold shall be deemed to be incorporated by reference into this Registration Statement and to be a part hereof from the date of filing of such documents. Item 4. DESCRIPTION OF SECURITIES Not Applicable. Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL Not Applicable. Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS Section 145 of the Delaware General Corporation law empowers a Delaware corporation to indemnify any persons who are, or are threatened to be made, parties to any threatened, pending or completed legal action, suit or proceedings, whether civil, criminal, administrative or investigative (other than by or in the right of such corporation), by reason of the fact that such person was an officer or director of such corporation, or is or was serving at the request of such corporation as a director, officer, employee or agent of another corporation or enterprise. Then indemnity may include expenses (including attorneys' fees), judgements, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding, provided that such officer or director acted in good faith and in a manner he reasonably believed to be in or not opposed to the corporation's best interests, and, for criminal proceedings, had no reasonable cause to believe his conduct was illegal. A Delaware corporation may indemnify officers and directors in an action by or in the right of the corporation under the same conditions, except that no indemnification is permitted without judicial approval if the officer or director is adjudged to be liable to the corporation in the performance of his duty. Where an officer or director is successful on the merits or otherwise in the defense of any action referred to above, the corporation must indemnify he or she against the expenses which such officer or director actually and reasonably incurred. In accordance with Delaware law, Registrant's restated certificate of incorporation contains a provision to limit the personal liability of Registrant's directors for violations of their fiduciary duty as a director. This provision eliminates each director's liability to Registrant or Registrant's stockholders for monetary damages except (i) for any breach of the director's duty of loyalty to Registrant or Registrant's 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 providing for liability of directors for unlawful payment of dividends or unlawful stock purchases or redemptions, or (iv) for any transaction from which a director derived an improper personal benefit. The effect of this provision is to eliminate the personal liability of directors for monetary damages for actions involving a breach of their fiduciary duty of care, including any such actions involving gross negligence. Registrant's restated certificate of incorporation and bylaws provide for indemnification of its officers and directors to the fullest extended permitted by applicable law. Registrant has entered into indemnification agreements with each director and executive officer which provide indemnification to such directors and executive officers under certain circumstances for acts or omissions which may not be covered by directors' and officers' liability insurance. Item 7. EXEMPTION FROM REGISTRATION CLAIMED Not Applicable. Item 8. EXHIBITS Exhibit Number Exhibit -------------- ------- 4 Instrument Defining Rights of Stockholders. Reference is made to Registrant's Registration Statement No. 0-28218 on Form 8-A, together with amendments thereto, which is incorporated herein by reference pursuant to Item 3(e) of this Registration Statement. II-2 5 Opinion and consent of Sullivan & Cromwell 23.1 Consent of Ernst & Young LLP Independent Auditors 23.2 Consent of Sullivan & Cromwell is contained in Exhibit 5. 24 Power of Attorney. Reference is made to page II-4 of this Registration Statement. 99.1 Genetic MicroSystems, Inc. 1998 Stock Option Plan 99.2 Amendment of the Genetic MicroSystems, Inc. 1998 Stock Option Plan Item 9. 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 1933 Act, (ii) to reflect in the prospectus any facts or events arising after the effective date of this 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 this Registration Statement and (iii) to include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement; provided, however, that clauses (1)(i) and (1)(ii) shall not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the Registrant pursuant to Section 13 or Section 15(d) of the 1934 Act that are incorporated by reference into this Registration Statement; (2) that for the purpose of determining any liability under the 1933 Act 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 and (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 Registrant's 1998 Stock Incentive Plan. B. The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the 1933 Act, each filing of the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the 1934 Act that is incorporated by reference into this 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. C. Insofar as indemnification for liabilities arising under the 1933 Act may be permitted to directors, officers or controlling persons of the Registrant pursuant to the indemnification provisions summarized in Item 6 or otherwise, the Registrant has been advised that, in the opinion of the SEC, such indemnification is against public policy as expressed in the 1933 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 1933 Act and will be governed by the final adjudication of such issue. II-3 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8, and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Santa Clara, State of California on this 7th day of April 2000. AFFYMETRIX, INC. By: /s/ Vern Norviel ------------------------- Vern Norviel Senior Vice President, General Counsel and Corporate Secretary II-4 POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS: That the undersigned officers and directors of Affymetrix, Inc., a Delaware corporation, do hereby constitute and appoint Stephen P.A. Fodor and Vern Norviel, and either of them, the lawful attorneys-in-fact and agents with full power and authority to do any and all acts and things and to execute any and all instruments which said attorneys and agents, and either one of them, determine may be necessary or advisable or required to enable said corporation to comply with the Securities Act of 1933, as amended, and any rules or regulations or requirements of the Securities and Exchange Commission in connection with this Registration Statement. Without limiting the generality of the foregoing power and authority, the powers granted include the power and authority to sign the names of the undersigned officers and directors in the capacities indicated below to this Registration Statement, to any and all amendments, both pre-effective and post-effective, and supplements to this Registration Statement, and to any and all instruments or documents filed as part of or in conjunction with this Registration Statement or amendments or supplements thereof, and either of the undersigned hereby ratifies and confirms all that said attorneys and agents, or either one of them, shall do or cause to be done by virtue hereof. This Power of Attorney may be signed in several counterparts. IN WITNESS WHEREOF, each of the undersigned has executed this Power of Attorney as of the date indicated. Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated. Signature Title Date - --------- ----- ---- /s/ Stephen P.A. Fodor - --------------------------- Chief Executive Officer and Chairman March 2000 Stephen P.A. Fodor, Ph.D. of the Board /s/ Edward Hurwitz - --------------------------- Vice President and Chief Financial March 2000 Edward M. Hurwitz Officer (Principal Financial and Accounting Officer) /s/ Paul Berg - --------------------------- Director March 2000 Paul Berg, Ph.D. /s/ John D. Diekman - --------------------------- Director March 2000 John D. Diekman, Ph.D. - --------------------------- Director March 2000 Adrian Hennah /s/ Vernon R. Loucks, Jr. - --------------------------- Director March 2000 Vernon R. Loucks, Jr. /s/ Barry C. Ross - --------------------------- Director March 2000 Barry C. Ross, Ph.D. /s/ David B. Singer - --------------------------- Director March 2000 David B. Singer /s/ Lubert Stryer - --------------------------- Director March 2000 Lubert Stryer, M.D. /s/ John A. Young - --------------------------- Director March 2000 John A. Young II-5 EXHIBIT INDEX Exhibit Number Exhibit -------------- ------- 4 Instrument Defining Rights of Stockholders. Reference is made to Registrant's Registration Statement No. 0-28218 on Form 8-A, together with amendments thereto, which is incorporated herein by reference pursuant to Item 3(e) of this Registration Statement. 5 Opinion and Consent of Sullivan & Cromwell 23.1 Consent of Ernst & Young, LLP, Independent Auditors 23.2 Consent of Sullivan & Cromwell is contained in Exhibit 5. 24 Power of Attorney. Reference is made to page II-4 of this Registration Statement. 99.1 Genetic MicroSystems, Inc. 1998 Stock Option Plan 99.2 Amendment of the Genetic MicroSystems, Inc. 1998 Stock Option Plan EX-5 2 OPINION AND CONSENT OF SULLIVAN & CROMWELL EXHIBIT 5 February 11, 2000 Affymetrix, Inc., 3380 Central Expressway, Santa Clara, CA 95051. Dear Sirs: In connection with the registration under the Securities Act of 1933, as amended (the "Act"), of 65,828 shares of Common Stock, par value $.01 per share (the "Shares"), of Affymetrix, Inc., a Delaware corporation (the "Company"), issuable upon the exercise of certain options granted pursuant to the GMS/Affymetrix 1998 Stock Plan (the "Plan"), and the attached stock purchase rights (the "Rights") to be issued pursuant to a Rights Agreement (the "Rights Agreement"), dated as of October 15, 1998, between the Company and American Stock Transfer & Trust Company, as Rights Agent (the "Rights Agent"), we, as your counsel, have examined such corporate records, certificates and other documents, and such questions of law, as we have considered necessary or appropriate for the purposes of this opinion. Upon the basis of such examination, we advise you that, in our opinion: (1) When the related options have been duly exercised in accordance with the Plan and the related option agreements and the exercise price therefor has been duly paid, the Shares, when duly issued upon the exercise of such options, will be validly issued, fully paid and nonassessable. (2) Assuming that the Board of Directors of the Company, after fully informing itself with respect to the Rights Agreement and the Rights after giving due consideration to all relevant matters, determined that the execution and delivery of the Rights thereunder would be in the best interest of the Company and its stockholders, and assuming further that the Rights Agreement has been duly authorized, executed and delivered by the Rights Agent, then when the Shares have been validly issued upon the exercise of the related options, the Rights attached to the Shares will be validly issued. In connection with our opinion set forth in paragraph (2) above, we note that the question whether the Board of Directors of the Company might be required to redeem the Rights at some future time will depend upon facts and circumstances existing at that time and, accordingly, is beyond the scope of such opinion. The foregoing opinion is limited to the Federal laws of the United States and the General Corporation Law of the State of Delaware, and we are expressing no opinion as to the effect of the laws of any other jurisdiction. We have relied as to certain matters on information obtained from public officials, officers of the Company and other sources believed by us to be responsible. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement relating to the Shares and the Rights. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Act. Very truly yours, /s/ Sullivan & Cromwell EX-23.1 3 CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS EXHIBIT 23.1 CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS We consent to the incorporation by reference to the Registration Statement (Form S-8) of Affymetrix, Inc., pertaining to the GMS/Affymetrix 1998 Stock Plan, of our report dated February 2, 2000, with respect to the consolidated financial statements and schedule of Affymetrix, Inc. included in its Annual Report on Form 10-K for the year ended December 31, 1999 and our report dated February 2, 2000 except for the third paragraph of Note 1 and Note 13 as to which the date is February 9, 2000 with respect to the supplemental consolidated financial statements and schedule of Affymetrix, Inc. included in its Current Report on Form 8-K dated April 7, 2000, filed with the Securities and Exchange Commission. Palo Alto, California April 7, 2000 EX-99.1 4 GENETIC MICROSYSTEMS, INC. 1998 STOCK OPTION PLAN EXHIBIT 99.1 GENETIC MICROSYSTEMS INC 1998 STOCK OPTION PLAN I. GENERAL 1. Purpose. This 1998 Stock Option Plan (the "Plan") of Genetic Microsystems Inc (the "Corporation") is intended to advance the interests of the Corporation by providing certain of its employees and certain other individuals providing services to the Corporation with an additional incentive, encouraging stock ownership by such individuals, increasing their proprietary interest in the success of the Corporation and encouraging them to remain employees of the Corporation or service providers for the Corporation. 2. Definitions. Whenever used herein, the following terms shall have the meanings set forth below (a) "Board" means the Board of Directors of the Corporation. (b) "Code" means the Internal Revenue Code of 1986, as it may be amended from time to time. (c) "Committee" means the Compensation Committee appointed by the Board to administer this Plan pursuant to Section 3 hereof. (d) "Corporation Group" means the Corporation, a parent corporation or subsidiary corporation of the Corporation, or a corporation, or a parent corporation or subsidiary corporation of such corporation, issuing or assuming an Option in a transaction of the type described in Section 424(a) of the Code. The terms "parent corporation" and "subsidiary corporation" shall have the meanings assigned to such terms by Section 424 of the Code. (e) "Disability" means a permanent and total disability as defined in Section 422(c)(6) of the Code. (f) "Fair Market Value" means, if Shares are traded on a national exchange, the mean between the high and low sales prices for the Shares on the date on which the determination is made (or if no sales occurred on that date, on the next preceding date on which there was such a sale), or, if sales prices of Shares are made available for publication by the National Association of Securities Dealers Automated Quotation System ("NASDAQ"), the closing price on the date on which such determination is made (or if no sales occurred on that date, on the next preceding date on which there was such a sale), or, if bid and asked prices of the Shares are made available for publication by NASDAQ, the average of closing bid and asked prices for the Shares on the date as of which the determination is made (or if no such quotation occurred on that date, on the next preceding date on which there was such a quotation), or if no such prices are available, the fair market value as determined by the Committee. (g) "Incentive Stock Option" means an Option granted pursuant to the Incentive Stock Option provisions as set forth in Part II of this Plan. (h) "Nonqualified Stock Option" means an Option granted pursuant to the Nonqualified Stock Option provisions as set forth in Part III of this Plan. (i) "Option" means an option to purchase shares under this Plan. (j) "Participant" means an individual to whom an Option is granted under this Plan. (k) "Shares" means shares of the Corporation's Common Stock, no par value. 3. Administration. This Plan shall be administered by the Compensation Committee appointed by the Board, which shall consist of at least two members of the Board. The Board, at its pleasure, may remove members from or add members to the Committee. A majority of Committee members shall constitute a quorum of members, and the actions of the majority shall be final and binding on the whole Committee. In addition to the other powers granted to the Committee under this Plan, the Committee shall have the power, subject to the terms of this Plan: (i) to determine which of the eligible individuals shall be granted Options; (ii) to determine the time or times when Options shall be granted and to determine the number of Shares subject to each Option may be exercised; (iii) to accelerate or extend (except for Incentive Stock Options) the date on which a previously granted Option may be exercised; (iv) to prescribe the form of agreement evidencing Options granted pursuant to this Plan; and (v) to construe and interpret this Plan and the agreements evidencing Options granted pursuant to this Plan, and to make all other determinations and take all other actions necessary or advisable for the administration of this Plan. 4. Eligibility. The individuals who shall be eligible to receive Options shall be the key employees employed by a member of the Corporation Group and such other individuals providing services to a member of the Corporation Group as shall be selected by the Committee; provided, however, that only employees employed by a member of the Corporation Group shall be eligible to receive Incentive Stock Options. Participants chosen to participate under this Plan may be granted an Incentive Stock Option, a Nonqualified Stock Option, or any combination thereof. 5. Shares Subject to This Plan. The Shares subject to Options shall be either authorized and unissued Shares or treasury Shares. The aggregate number of Shares which may be issued pursuant to this Plan shall be Three Hundred Thousand (300,000). If an Option shall expire and terminate for any reason, in whole or in part, without being exercised, the number of Shares as to which such expired or terminated Option shall not have been exercised may again become available for the grant of Options. -2- II. INCENTIVE STOCK OPTION PROVISIONS 1. Grant of Incentive Stock Options. Subject to the provisions of this Part II, the Committee shall from time to time determine those individuals eligible pursuant to Section 4 of Part I to whom Incentive Stock Options shall be granted and the number of Shares subject to, and terms and conditions of, such Options. Anything herein to the contrary notwithstanding, no Incentive Stock Option shall be granted to an employee if, at the time the Incentive Stock Option is granted, such employee owns stock possessing more than 10% of the total combined voting power of all classes of stock of any member of the Corporation Group unless the option price is at least 110% of the Fair Market Value of the Shares subject to the Incentive Stock Option at the time the Incentive Stock Option is granted and the Incentive Stock Option is not exercisable after the expiration of five (5) years from the date the Incentive Stock Option is granted. 2. Terms and Conditions of Incentive Stock Options. Each Incentive Stock Option shall be evidenced by an option agreement which shall be in such form as the Committee shall from time to time approve, and which shall comply with and be subject to the following terms and conditions: (a) Number of Shares. Each Incentive Stock Option agreement shall state the number of shares covered by the agreement. (b) Option Price and Method of Payment. The Option price of each Incentive Stock Option shall be no less than the Fair Market Value of the Shares on the date the Incentive Stock Option is granted. The option price shall be payable on exercise of the Option (i) in cash or by certified check, bank draft or postal or express money order, or (ii) with the advance consent of the Committee in its sole discretion (A) by the surrender of Shares then owned by the Participant, or (B) partially in accordance with clause (i) and partially in accordance with clause (ii)(A) of this Section 2(b). Shares so surrendered in accordance with clause (ii)(A) or (ii)(B) shall be valued at the Fair Market Value thereof on the date of exercise, surrender of such Shares to be evidenced by delivery of the certificate(s) representing such Shares in such manner, and endorsed in such form, or accompanied by stock powers endorsed in such form, as the Committee may determine. (c) Option Period. (i) General. The period during which an Incentive Stock Option shall be exercisable shall not exceed ten (10) years from the date such Incentive Stock Option is granted; provided, however, that such Option may be sooner terminated in accordance with the provisions of this Section 2(c). Subject to the foregoing, the Committee may establish a period or periods with respect to all or any part of the Incentive Stock Option during which the right to exercise such Option shall vest. (ii) Termination of Employment. If the Participant ceases to be an employee of any member of the Corporation Group for any reason other than willful, gross or deliberate misconduct, Disability or death, any then outstanding Incentive Stock Option held by the Participant shall terminate on the earlier of the date on which such Option would otherwise expire or thirty days after such termination of employment, and such Option shall be exercisable, prior to its termination, to the extent it was exercisable as of the date of termination of employment. In the event of the Participant's termination for willful, deliberate or gross misconduct, as reasonably determined by the Corporation, the Option shall expire on the date of such termination and may not thereafter be exercised. (iii) Disability. If a Participant's employment is terminated by reason of Disability, any then outstanding Incentive Stock Option held by the Participant shall terminate on the earlier of the date on which such Option would otherwise expire or one hundred and eighty days after such termination of employment, and such Option shall be exercisable, prior to its termination, to the extent it was exercisable as of the date of termination of employment. -3- (iv) Death. If a Participant's employment is terminated by death, the representative of the Participant's estate or beneficiaries thereof to whom the Option has been transferred shall have the right during the one hundred eighty day period following the date of the Participant's death to exercise any then outstanding Incentive Stock Options in whole or in part. The number of Shares in respect of which an Incentive Stock Option may be exercised after a Participant's death shall be the number of Shares in respect of which such Option could be exercised as of the date of the Participant's death. In no event may the period for exercising an Incentive Stock Option extend beyond the date on which such Option would otherwise expire. (d) Non-transferability. An Incentive Stock Option shall not be transferable or assignable by the Participant other than by will or the laws of descent and distribution and shall be exercisable during the Participant's lifetime only by the Participant. (e) Separate Agreements. Nonqualified Options may not be granted in the same agreement as an Incentive Stock Option. -4- III. NONQUALIFIED STOCK OPTION PROVISIONS 1. Grant of Nonqualified Stock Options. Subject to the provisions of this Part III, the Committee shall from time to time determine those individuals eligible pursuant to Section 4 of Part I to whom Nonqualified Stock Options shall be granted and the number of Shares subject to, and terms and conditions of, such Options. 2. Terms and Conditions of Nonqualified Stock Options. Each Nonqualified Stock Option shall be evidenced by an option agreement which shall be in such form as the Board shall from time to time approve, and which shall comply with and be subject to the following terms and conditions: (a) Number of Shares. Each Nonqualified Stock Option agreement shall state the number of Shares covered by the agreement. (b) Option Price and Method of Payment. The option price of each Nonqualified Stock Option shall be such price as the Committee, in its discretion, shall establish, and the Committee may, in its discretion, reduce the option price of such Option at any time prior to the exercise of the Option; provided however, that the option price may not be less than par value, if any, of the Shares. The option price shall be payable on exercise of the Option (i) in cash or by certified check, bank draft or postal or express money order, or (ii) with the advance consent of the Committee in its sole discretion (A) by the surrender of Shares then owned by the Participant, or (B) partially in accordance with clause (i) and partially in accordance with clause (ii)(A) of this Section 2(b). Shares so surrendered in accordance with clause (ii)(A) or (ii)(B) shall be valued at the Fair Market Value thereof on the date of exercise, surrender of such Shares to be evidenced by delivery of the certificate(s) representing such Shares in such manner, and endorsed in such form, or accompanied by stock powers endorsed in such form, as the Committee may determine. (c) Option Period. (i) General. The period during which a Nonqualified Stock Option shall be exercisable shall not exceed ten (10) years from the date such Nonqualified Stock Option is granted; provided, however, that such Option may be sooner terminated in accordance with the provisions of this Section 2(c). Subject to the foregoing, the Committee may establish a period or periods with respect to all or any part of the Nonqualified Stock Option during which the right to exercise such Option shall vest. The number of Shares which may be purchased at any one time shall be 100 Shares, a multiple thereof or the total number at the time purchasable under the Nonqualified Stock Option. (ii) Termination of Employment or Service. If the Participant ceases to be an employee of any member of the Corporation Group or ceases to perform services for any member of the Corporation Group for any reason other than willful, gross or deliberate misconduct, Disability or death, any outstanding Nonqualified Stock Option held by the Participant shall terminate on the earlier of the date on which such Option would otherwise expire or thirty days after such termination of employment or provision of services, and such Option shall be exercisable, prior to its termination, to the extent it was exercisable as of the date of termination of employment or the date on which services ceased to be performed. In the event of the Participant's termination of employment or services for willful, deliberate or gross misconduct, as reasonably determined by the Corporation, the Option shall expire on the date of such termination and may not thereafter be exercised. (iii) Disability. If a Participant's employment or provision of services is terminated by Disability, any then outstanding Nonqualified Stock Option held by the Participant shall terminate on the earlier of the date on which such Option would otherwise expire or one hundred eighty days after such termination of employment or the provision of services, and such Option shall be -5- exercisable, prior to its termination, to the extent it was exercisable as of the date of termination of employment or the date on which services ceased to be performed. (iv) Death. If a Participant's employment or provision of services is terminated by death, the representative of the Participant's estate or beneficiaries thereof to whom the Option has been transferred shall have the right during the one hundred eighty day period following the date of the Participant's death to exercise any then outstanding Nonqualified Stock Options in whole or in part. The number of Shares in respect to which a Nonqualified Stock Option may be exercised after a Participant's death shall be the number of Shares in respect of which such Option could be exercised as of the date of the Participant's death. In no event may the period for exercising a Nonqualified Stock Option extend beyond the date on which such Option would otherwise expire. (d) Non-transferability. A Nonqualified Stock Option shall not be transferable or assignable by the Participant other than by will or the laws of descent and distribution, and shall be exercisable during the Participant's lifetime only by the Participant. -6- IV. MISCELLANEOUS 1. Effective Date. This Plan shall become effective as of April 30, 1998 (the "Effective Date"). 2. Duration of Program. Unless sooner terminated, the Plan shall remain in effect for a period of ten years after the Effective Date and shall thereafter terminate. No Incentive Stock Options or Nonqualified Stock Options may be granted after the termination of this Plan; provided however, that termination of the Plan shall not affect any Options previously granted, which such Options shall remain in effect until exercised, surrendered or canceled, or until they have expired, all in accordance with their terms. 3. Changes in Capital Structure, etc. In the event of changes in the outstanding common shares of the Corporation by reasons of stock dividends, stock splits, recapitalizations, mergers, consolidations, combinations or exchange of shares, reorganizations, or liquidations, the number of Shares available under the Plan in the aggregate and the maximum number of Shares as to which Options may be granted to any Participant shall be correspondingly adjusted by the Committee. In addition, the Committee shall make appropriate adjustments in the number of Shares as to which outstanding Options, or portions thereof then unexercised, shall relate, to the end that the Participant's proportionate interest shall be maintained as before the occurrence of such events; such adjustment shall be made without change in the total price applicable to the unexercised portion of Options and with a corresponding adjustment in the option price per Share. In addition, if the Corporation is to be consolidated with or acquired by another entity in a merger, sale of all or substantially all of the Corporation's assets or otherwise (an "Acquisition"), the Committee or the Board of Directors of any entity assuming the obligations of the Corporation hereunder, may, as to outstanding Options, either (i) make appropriate provision for the continuation of such Options by substituting on an equitable basis for the Shares then subject to such Options the consideration payable with respect to the outstanding Shares in connection with the Acquisition, or (ii) upon written notice to the optionees, provide that all Options must be exercised, to the extent then exercisable, within a specified number of days of the date of such notice, at the end of which period the Options shall terminate; or (iii) terminate all Options in exchange for a cash payment equal to the excess of the Fair Market Value of the Shares subject to such Options (to the extent then exercisable) over the exercise price thereof. 4. Rights as Shareholder. A Participant entitled to Shares as a result of the exercise of an Option shall not be deemed for any purpose to be, or have rights as, a shareholder of the Corporation by virtue of such exercise, except to the extent a stock certificate is issued therefor and then only from the date such certificate is issued. No adjustments shall be made for dividends or distributions or other rights for which the record date is prior to the date such stock certificate is issued. 5. Withholding. Any person exercising an Option shall be required to pay to the appropriate member of the Corporation Group the amount of any taxes such member is required by law to withhold with respect to the exercise of such Option. Such payment shall be due on the date such member is required by law to withhold such taxes. Such payment may also be made at the election of the optionee by the surrender of Shares then owned by the optionee, or the withholding of Shares otherwise to be issued to the optionee on exercise, in an amount that would satisfy the withholding amount due. The value of such Shares withheld or delivered shall be equal to the Fair Market Value of such Shares on the date of exercise. In the event that such payment is not made when due, the Corporation shall have the right to deduct, to the extent permitted by law, from any payment of any kind otherwise due to such person from any member of the Corporation Group, all or part of the amount required to be withheld. 6. Compliance with Applicable Law. Notwithstanding anything herein to the contrary, the Corporation shall not be obligated to cause to be issued or delivered any certificates evidencing Shares pursuant to the exercise of an Option, unless and until the Corporation is advised by its counsel that the issuance and delivery of such certificates is in compliance with all applicable laws and regulations of governmental authority. The Corporation shall in no event be obligated to register any securities pursuant to the Securities Act of 1933 (as now in effect or as hereafter amended) or to take any other action in order to -7- cause the issuance and delivery of such certificates to comply with any such law or regulation. The Committee may require, as a condition of the issuance and delivery of such certificates and in order to ensure compliance with such laws and regulations, that the Participant make such covenants, agreements and representations as the Committee, in its sole discretion, deems necessary or desirable. 7. Application of Funds. Any cash proceeds received by the Corporation from the sale of Shares pursuant to Options will be used for general corporate purposes. 8. Amendment of the Plan. The Board may from time to time suspend or discontinue this Plan or revise or amend it in any respect whatsoever except that, without approval of the shareholders, no such revision or amendment shall (a) increase the number of Shares subject to this Plan, (b) decrease the price at which Options may be granted, (c) remove the administration of this Plan from the Committee, (d) modify the requirements as to eligibility for a grant of an Option, or (e) materially increase the benefits accruing to the Participants under this Plan. No such suspension, discontinuance, revision or amendment shall in any manner affect any grant theretofore made without the consent of the Participant unless necessary to comply with applicable law. -8- GENETIC MICROSYSTEMS INC 1998 STOCK OPTION PLAN INCENTIVE STOCK OPTION AGREEMENT Subject to the terms of the 1998 Stock Option Plan (the "Plan") of Genetic MicroSystems Inc (the "Corporation"), a copy of which is attached hereto, Sokhom Kim ("Optionee") is hereby granted an Incentive Stock Option, as defined in the Plan, (referred to as the "Option") to purchase 4,000 shares of the Common Stock of the Corporation at a price of $0.20 per share, such price per share being not less than 100 percent of the fair market value of the stock at the time this Option is granted (the "Option Price"). This Option expires on May 1, 2008 (not later than ten (10) years from the date hereof), and is subject to any earlier termination as provided in the Plan. This Option may be exercised by the Optionee as follows: as to 1,334 shares, on October 6, 1998; as to a further 1,333 shares, on October 6, 1999; and as to the final 1,333 shares, on October 6, 2000. The Optionee hereby accepts the Option specified above. This Option is not transferable by the Optionee otherwise than by will and by the laws of descent and distribution and is exercisable during the Optionee's lifetime only by such Optionee. Dated: GENETIC MICROSYSTEMS INC Accepted: By: By: ------------------------ -------------------------- Its Optionee EX-99.2 5 AMENDMENT, GENETIC MICROSYSTEMS STOCK OPTION PLAN EXHIBIT 99.2 Amendment of Genetic MicroSystems, Inc. 1998 Stock Option Plan WHEREAS, the Board of Directors of Affymetrix, Inc. (the "Board") has adopted resolutions approving the Agreement and Plan of Merger, dated as of September 10, 1999 (the "Merger Agreement"), among Genetic MicroSystems, Inc., a Massachusetts corporation ("GMS"), GMS Acquisition, Inc., a Massachusetts corporation ("Merger Sub") and wholly owned subsidiary of Affymetrix, Inc. (the "Company") and the Company, pursuant to which GMS will merge with and into a wholly owned subsidiary of Affymetrix, causing GMS to become a Merger Sub, causing GMS to become a wholly owned subsidiary of the Company. WHEREAS, in approving the Merger Agreement the Board adopted a resolution authorizing the officers of the Company to take any and all actions to perform or cause to be performed, the obligations of the Company under the Merger Agreement; and WHEREAS, the Merger Agreement provides for assumption by the Company of options to purchase GMS common stock and the conversion of such options into the right to purchase the Company's common stock. NOW, THEREFORE, BE IT RESOLVED, that the name of the plan is hereby changed to "GMS/Affymetrix 1998 Stock Plan" and Section I, Paragraph 5 of the Genetic MicroSystems, Inc. 1998 Stock Option Plan is hereby amended to add the following paragraph at the end thereof: "Notwithstanding the foregoing, options to purchase the Company's shares ("Stock Options") may be granted to employees and non-employees of the Company and its subsidiaries who hold similar awards to receive, or which are valued by reference to, common stock of another company (the "Acquired Company"), if such Stock Options are issued pursuant to a requirement that the Company assume such other awards or issue Stock Options in substitution of such other awards pursuant to the terms of an agreement with respect to the Company's acquisition of the Acquired Company whether by purchase, merger, consolidation, combination or exchange of shares. The purchase price per share of the Common Stock under such Stock Options may be less than 100% of the Fair Market Value of the Common Stock on the date of the grant of the Stock Option, provided that such purchase price is determined in accordance with the agreement for such acquisition." AFFYMETRIX, INC. By: /s/ Vern Norviel ----------------------------- Name: Vern Norviel -----END PRIVACY-ENHANCED MESSAGE-----