<PAGE>
As filed with the Securities and Exchange Commission on October 6, 1998
Registration No. 333-11299, 333-35287
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
POST EFFECTIVE AMENDMENT NO. 1
TO
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 of (I.R.S. Employer
Incorporation or Organization) Identification No.)
3380 CENTRAL EXPRESSWAY, SANTA CLARA, CALIFORNIA 95051
-------------------------------------------------------
(Address of Principal Executive Offices)
1993 Stock Plan
1996 NONEMPLOYEE DIRECTORS STOCK OPTION PLAN
--------------------------------------------
(Full Title of the Plan)
Vernon A. Norviel
Vice President and General Counsel
Affymetrix, Inc.
3380 CENTRAL EXPRESSWAY, SANTA CLARA, CALIFORNIA 95051
-------------------------------------------------------
(Name and Address of Agent For Service)
(408) 731-5000
--------------
(Telephone Number, Including Area Code, of Agent For Service)
Stephen C. Ferruolo, Esq.
Heller Ehrman White & McAuliffe
525 University Avenue
Palo Alto, California 94301-1908
(650) 324-7000
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------------
Proposed Maximum Proposed Maximum Amount of
Title of Securities Amount to be Offering Price Aggregate Offering Registration
to be Registered Registered per Share (1) Price Fee
- -------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
SEE BELOW* N/A* N/A* N/A* N/A*
- -------------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------------
</TABLE>
* No additional securities are to be registered, and registration fees were
paid upon filing of the original Registration Statements No. 333-11299 and
333-35287. Therefore, no further registration fee is required.
<PAGE>
EXPLANATORY NOTE
This Post-Effective Amendment No. 1 (the "Amendment") to the
Registration Statements on Form S-8 (File No. 333-11299 and 333-35287)
(collectively the "Registration Statements") is being filed pursuant to Rule
414 under the Securities Act of 1933, as amended (the "Securities Act"), by
Affymetrix, Inc., a Delaware corporation ("Affymetrix Delaware" or the
"Registrant"), which is the successor to Affymetrix, Inc., a California
corporation ("Affymetrix California"), following a statutory merger effective
on September 29, 1998 (the "Merger") effected for the purpose of changing
Affymetrix California's state of incorporation to Delaware. Prior to the
Merger, Affymetrix Delaware had no assets or liabilities other than nominal
assets or liabilities. In connection with the Merger, Affymetrix Delaware
succeeded by operation of law to all of the assets and liabilities of
Affymetrix California. The Merger was approved by the shareholders of
Affymetrix California at a meeting for which proxies were solicited pursuant
to Section 14(a) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"). In connection with the Merger, Affymetrix Delaware, by
virtue of this Amendment, expressly adopts the Registration Statements as its
own registration statements for all purposes of the Securities Act and the
Exchange Act.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed or to be filed with the Securities and
Exchange Commission (the "Commission") by the registrant are incorporated by
reference in this registration statement:
(a) The registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 1997, and the registrant's Quarterly Reports on Form 10-Q for
the fiscal quarters ended March 31, 1998 and June 30, 1998;
(b) The registrant's Registration Statement on Form S-1 (No.
333-3648) filed with the Commission on April 15, 1996, as amended;
(c) The description of the Common Stock of the registrant contained
in the registrant's Registration Statement on Form 8-A (No. 0-28218) filed with
the Commission on April 16, 1996 pursuant to Section 12 of the Exchange Act of
1934, as amended (the "Exchange Act"); and
(d) All documents subsequently filed by the registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, 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.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Pursuant to the Delaware General Corporation Law, the Registrant has
included in its certificate of incorporation provisions regarding the
indemnification of officers and directors of the Registrant. Article NINTH of
the Registrant's Certificate of Incorporation provides as follows:
"NINTH: To the fullest extent permitted by Delaware General Corporation
Law, a director of the corporation shall not be personally liable to the
corporation or its
3
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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 corporation 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, or (iv) for
any transaction from which the director derived an improper personal benefit.
If the Delaware General Corporation Law is amended to authorize corporate
action further eliminating or limiting the personal liability of directors,
then the liability of a director of the corporation shall be eliminated or
limited to the fullest extent permitted by the Delaware General Corporation
Law, as so amended. Any repeal or modification of this provision shall not
adversely affect any right or protection of a director of the corporation
existing at the time of such repeal or modification."
Article VIII of the Registrant's Bylaws, provides as follows:
SECTION 1. RIGHT TO INDEMNIFICATION.
Each person who was or is made a party or is threatened to be made a
party to or is otherwise involved in any action, suit or proceeding, whether
civil, criminal, administrative or investigative (hereinafter a
"proceeding"), by reason of the fact that he or she is or was a director or
an officer of the Corporation or is or was serving at the request of the
Corporation as a director or officer of another corporation or of a
partnership, joint venture, trust or other enterprise, including service with
respect to an employee benefit plan (hereinafter an "indemnitee"), whether
the basis of such proceeding is alleged action in an official capacity as a
director or officer or in any other capacity while serving as a director or
officer, shall be indemnified and held harmless by the Corporation to the
fullest extent authorized by the Delaware General Corporation Law, as the
same exists or may hereafter be amended (but, in the case of any such
amendment, only to the extent that such amendment permits the Corporation to
provide broader indemnification rights than such law permitted the
Corporation to provide prior to such amendment), against all expense,
liability and loss (including attorneys' fees, judgments, fines, ERISA excise
taxes or penalties and amounts paid in settlement) reasonably incurred or
suffered by such indemnitee in connection therewith; provided, however, that,
except as provided in Section 3 of this ARTICLE VIII with respect to
proceedings to enforce rights to indemnification, the Corporation shall
indemnify any such indemnitee in connection with a proceeding (or part
thereof) initiated by such indemnitee only if such proceeding (or part
thereof) was authorized by the Board of Directors of the Corporation.
SECTION 2. RIGHT TO ADVANCEMENT OF EXPENSES.
The right to indemnification conferred in Section 1 of this ARTICLE VIII
shall include the right to be paid by the Corporation the expenses (including
attorney's fees)
4
<PAGE>
incurred in defending any such proceeding in advance of its final disposition
(hereinafter an "advancement of expenses"); provided, however, that, if the
Delaware General Corporation Law requires, an advancement of expenses
incurred by an indemnitee in his or her capacity as a director or officer
(and not in any other capacity in which service was or is rendered by such
indemnitee, including, without limitation, service to an employee benefit
plan) shall be made only upon delivery to the Corporation of an undertaking
(hereinafter an "undertaking"), by or on behalf of such indemnitee, to repay
all amounts so advanced if it shall ultimately be determined by final
judicial decision from which there is no further right to appeal (hereinafter
a "final adjudication") that such indemnitee is not entitled to be
indemnified for such expenses under this Section 2 or otherwise. The rights
to indemnification and to the advancement of expenses conferred in Sections 1
and 2 of this ARTICLE VIII shall be contract rights and such rights shall
continue as to an indemnitee who has ceased to be a director or officer and
shall inure to the benefit of the indemnitee's heirs, executors and
administrators.
SECTION 3. RIGHT OF INDEMNITEE TO BRING SUIT.
If a claim under Section 1 or 2 of this ARTICLE VIII is not paid in full
by the Corporation within 60 days after a written claim has been received by
the Corporation, except in the case of a claim for an advancement of
expenses, in which case the applicable period shall be 20 days, the
indemnitee may at any time thereafter bring suit against the Corporation to
recover the unpaid amount of the claim. If successful in whole or in part in
any such suit, or in a suit brought by the Corporation to recover an
advancement of expenses pursuant to the terms of an undertaking, the
indemnitee shall be entitled to be paid also the expense of prosecuting or
defending such suit. In (i) any suit brought by the indemnitee to enforce a
right to indemnification hereunder (but not in a suit brought by the
indemnitee to enforce a right to an advancement of expenses) it shall be a
defense that, and (ii) in any suit brought by the Corporation to recover an
advancement of expenses pursuant to the terms of an undertaking, the
Corporation shall be entitled to recover such expenses upon a final
adjudication that, the indemnitee has not met any applicable standard for
indemnification set forth in the Delaware General Corporation Law. Neither
the failure of the Corporation (including its Board of Directors, independent
legal counsel, or its stockholders) to have made a determination prior to the
commencement of such suit that indemnification of the indemnitee is proper in
the circumstances because the indemnitee has met the applicable standard of
conduct set forth in the Delaware General Corporation Law, nor an actual
determination by the Corporation (including its Board of Directors,
independent legal counsel, or its stockholders) that the indemnitee has not
met such applicable standard of conduct, shall create a presumption that the
indemnitee has not met the applicable standard of conduct or, in the case of
such a suit brought by the indemnitee, be a defense to such suit. In any
suit brought by the indemnitee to enforce a right to indemnification or to an
advancement of expenses hereunder, or brought by the Corporation to recover
an advancement of expenses pursuant to the terms of an undertaking, the
burden of proving
5
<PAGE>
that the indemnitee is not entitled to be indemnified or to such advancement
of expenses, under this ARTICLE VIII or otherwise shall be on the Corporation.
SECTION 4. NON-EXCLUSIVITY OF RIGHTS.
The rights to indemnification and to the advancement of expenses
conferred in this ARTICLE VIII shall not be exclusive of any other right
which any person may have or hereafter acquire under any statute, the
Corporation's Certificate of Incorporation, Bylaws, agreement, vote of
stockholders or disinterested directors or otherwise.
SECTION 5. INSURANCE.
The Corporation may maintain insurance, at its expense, to protect
itself and any director, officer, employee or agent of the Corporation or
another corporation, partnership, joint venture, trust or other enterprise
against any expense, liability or loss, whether or not the Corporation would
have the power to indemnify such person against such expense, liability or
loss under the Delaware General Corporation Law.
SECTION 6. INDEMNIFICATION OF EMPLOYEES AND AGENTS OF THE CORPORATION.
The Corporation may, to the extent authorized from time to time by the
Board of Directors, grant rights to indemnification and to the advancement of
expenses to any officer, employee or agent of the Corporation to the fullest
extent of the provisions of this Article with respect to the indemnification
and advancement of expenses of directors and officers of the Corporation."
In addition, the Company has entered into indemnification agreements with
each of its officers and directors.
<TABLE>
<CAPTION>
ITEM 8. EXHIBITS
<S> <C>
23.1 Consent of Ernst & Young LLP, Independent Auditors
99.1 (1)(2) 1993 Stock Plan, as amended
99.2 (1) 1996 Nonemployee Directors Stock Option Plan
____________________________________________________________
(1) Incorporated by reference to the exhibit to Affymetrix California's
Registration Statement on Form S-8 (File No. 333-11299) filed on September
3, 1996.
(2) Incorporated by reference to the exhibit to Affymetrix California's
Registration Statement on Form S-8 (File No. 333-35287) filed on September
10, 1997.
</TABLE>
6
<PAGE>
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 Securities Act of 1933, as amended (the "Securities Act");
(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;
(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
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 15(d) of the Exchange Act that are incorporated by reference in
the registration statement.
(2) That, for the purpose of determining any liability under the
Securities 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.
(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. The undersigned registrant hereby undertakes that, for purposes of
determining liability under the Securities Act, each filing of the registrant's
annual report pursuant to Section 13(a) or 15(d) of the Exchange Act that is
incorporated by reference in the registration statement shall be deemed 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.
7
<PAGE>
C. Insofar as indemnification for liabilities arising under the
Securities 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
Securities 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
Securities Act and will be governed by the final adjudication of such issue.
8
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 6th day
of October, 1998.
AFFYMETRIX, INC.
By: /s/ Stephen P.A. Fodor
------------------------------------
Stephen P.A. Fodor, Ph.D.
President and Chief Executive Officer
POWER OF ATTORNEY TO SIGN AMENDMENTS
Each person whose signature appears below constitutes and appoints
Stephen P.A. Fodor, Ph.D. and Edward M. Hurwitz, and each of them, with full
power of substitution and full power to act without the other, such person's
true and lawful attorneys-in-fact and agents for such person in such person's
name, place and stead, in any and all capacities, to sign any or all
amendments (including post-effective amendments) to this registration
statement on Form S-8 and to file the same, with all exhibits thereto, and
other documents in connection therewith, 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 and necessary to be done in and about the premises in order to
effectuate the same as fully, to all intents and purposes, as they or such
person might or could do in person, hereby ratifying and confirming all that
said attorneys-in-fact and agents, or any of them, may lawfully do or cause
to be done by virtue hereof.
9
<PAGE>
Pursuant to the requirements of the Securities Act, this Registration
Statement on Form S-8 has been signed by the following persons in the capacities
and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE CAPACITY DATE
- --------- -------- ----
<S> <C> <C>
/s/ Stephen P.A. Fodor
---------------------------- Director, President and October 6, 1998
Stephen P.A. Fodor,Ph.D. Chief Executive Officer
(Principal Executive
Officer)
/s/ John D. Diekman Director and Chairman
---------------------------- October 6, 1998
John D. Diekman Ph.D.
/s/ Paul Berg Director
---------------------------- October 6, 1998
Paul Berg, Ph.D.
Director
---------------------------- October__, 1998
Douglas M. Hurt
Director
---------------------------- October__, 1998
Vernon R. Loucks, Jr.
/s/ Barry C. Ross Director
---------------------------- October 6, 1998
Barry C. Ross, Ph.D.
/s/ David B. Singer
---------------------------- Director
David B. Singer October 6, 1998
/s/ Lubert Stryer Director
---------------------------- October 6, 1998
Lubert Stryer, M.D.
</TABLE>
10
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<TABLE>
<S> <C> <C>
Director
---------------------------- October__, 1998
John A. Young
/s/ Edward M. Hurwitz Vice President and
---------------------------- Chief Financial Officer
Edward M. Hurwitz (Principal Financial October 6, 1998
Officer)
</TABLE>
11
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Sequentially
Item Numbered
No. Description of Item Page
- ---- ------------------- ------------
<S> <C>
23.1 Consent of Ernst & Young LLP, Independent Auditors
99.1 (1)(2) 1993 Stock Plan, as amended
99.2 (1) 1996 Nonemployee Directors Stock Option Plan
____________________________________________________________
(1) Incorporated by reference to the exhibit to Affymetrix California's
Registration Statement on Form S-8 (File No. 333-11299) filed on September
3, 1996.
(2) Incorporated by reference to the exhibit to Affymetrix California's
Registration Statement on Form S-8 (File No. 333-35287) filed on September
10, 1997.
</TABLE>
<PAGE>
Exhibit 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Post Effective Amendment
No. 1 to the Registration Statements (Forms S-8 No. 333-11299 and
333-35287), pertaining to the 1993 Stock Option Plan and 1996 Non-employee
Directors Stock Option Plan of Affymetrix, Inc., of our report dated January
23, 1998 with respect to the financial statements of Affymetrix, Inc.
included in its Annual Report (Form 10-K) for the year ended December 31,
1997, and filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Palo Alto, California
October 1, 1998
