-----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, QwkRM3w3YmVV9pfp5pwkJEBk+GWCQY2AU5t8DRN3xBx0hczCIwSV+F1IUwpFB/ad me9iHqeAusx+BlMYmqmsow== 0001047469-99-033094.txt : 19990820 0001047469-99-033094.hdr.sgml : 19990820 ACCESSION NUMBER: 0001047469-99-033094 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19990819 EFFECTIVENESS DATE: 19990819 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: 333-85575 FILM NUMBER: 99696145 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 S-8 FORM As filed with the Securities and Exchange Commission on August 19, 1999 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. 1998 STOCK INCENTIVE PLAN (Full title of the Plan) ------------- VERN NORVIEL SENIOR VICE PRESIDENT AND GENERAL COUNSEL 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 Proposed Title of Maximum Maximum Securities Amount Offering Aggregate Amount of to be to be Price Offering Registration Registered Registered (1) per Share (2) Price (2) Fee ---------- ---------- --------- ------ ---------- Options 1,000,000 N/A N/A N/A Common Stock (par value $.01) 1,000,000 $67.06 $67,060,000 $18,642.68
=============================================================================== (1) This Registration Statement shall also cover any additional shares of Common Stock which become issuable under the 1998 Stock Incentive 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, on the basis of the average of the high and low prices per share of Common Stock of Affymetrix, Inc. as reported on the Nasdaq National Market on August 13, 1999. 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, 1998; b. (1) The Registrant's Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 1999; (2) The Registrant's Quarterly Report on Form 10-Q for the fiscal quarter ended June 30, 1999; c. The Registrant's Current Report on Form 8-K, filed with the SEC on April 1, 1999; d. The Registrant's Registration Statement No. 333-82685 on Form S-3 filed with the SEC on July 12, 1999, together with the amendment on Form S-3/A filed with the SEC on July 26, 1999; and e. 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. 5 Opinion and consent of Gunderson Dettmer Stough Villeneuve Franklin & Hachigian, LLP. 23.1 Consent of Ernst & Young, LLP, Independent Auditors. 23.2 Consent of Gunderson Dettmer Stough Villeneuve Franklin & Hachigian, LLP is contained in Exhibit 5. 24 Power of Attorney. Reference is made to page II-4 of this Registration Statement.
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 II-2 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 19th day of August, 1999. AFFYMETRIX, INC. By: /s/ Stephen P.A. Fodor ------------------------------------------- Stephen P.A. Fodor, Ph.D. President and Chief Executive Officer, Director 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 Edward M. Hurwitz, 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 President and Chief Executive Officer August 19, 1999 - ----------------------------- and Director Stephen P.A. Fodor, Ph.D. (Principal Executive Officer) /s/ Edward M. Hurwitz Vice President and August 19, 1999 - ----------------------------- Chief Financial Officer Edward M. Hurwitz (Principal Financial and Accounting Officer) /s/ John D. Diekman Chairman of the Board August 19, 1999 - ----------------------------- John D. Diekman, Ph.D.
II-4
Signature Title Date - --------- ----- ---- /s/ Paul Berg Director August 19, 1999 - ----------------------------- Paul Berg, Ph.D. /s/ Adrian Hennah Director August 19, 1999 - ----------------------------- Adrian Hennah /s/ Vernon R. Loucks, Jr. Director August 19, 1999 - ----------------------------- Vernon R. Loucks, Jr. /s/ Barry C. Ross Director August 19, 1999 - ----------------------------- Barry C. Ross, Ph.D. /s/ David B. Singer Director August 19, 1999 - ----------------------------- David B. Singer /s/ Lubert Stryer Director August 19, 1999 - ----------------------------- Lubert Stryer, M.D. /s/ John A. Young Director August 19, 1999 - ----------------------------- 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 Gunderson Dettmer Stough Villeneuve Franklin & Hachigian, LLP. 23.1 Consent of Ernst & Young, LLP, Independent Auditors. 23.2 Consent of Gunderson Dettmer Stough Villeneuve Franklin & Hachigian, LLP is contained in Exhibit 5. 24 Power of Attorney. Reference is made to page II-4 of this Registration Statement.
EX-5 2 EX-5 EXHIBIT 5 August 19, 1999 Affymetrix, Inc. 3380 Central Expressway Santa Clara, CA 95051 Re: Affymetrix, Inc. Registration Statement for Offering of an Aggregate of 1,000,000 Shares of Common Stock Ladies and Gentlemen: We refer to your registration on Form S-8 (the "Registration Statement") under the Securities Act of 1933, as amended, of 1,000,000 shares of Common Stock under the 1998 Stock Incentive Plan. We advise you that, in our opinion, when such shares have been issued and sold under the applicable provisions of the 1998 Stock Incentive Plan, and in accordance with the Registration Statement, such shares will be validly issued, fully paid and nonassessable shares of the Company's Common Stock. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. Very truly yours, /s/ Gunderson Dettmer Stough Villeneuve Franklin & Hachigian, LLP Gunderson Dettmer Stough Villeneuve Franklin & Hachigian, LLP EX-23.1 3 EX-23.1 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 1998 Stock Incentive Plan, of our report dated January 29, 1999 (except for Note 11, as to which the date is March 25, 1999) with respect to the financial statements and schedule of Affymetrix, Inc. included in its Annual Report (Form 10-K) for the year ended December 31, 1998, filed with the Securities and Exchange Commission. /s/ Ernst & Young LLP Palo Alto, California August 18, 1999 -----END PRIVACY-ENHANCED MESSAGE-----