<PAGE>
As filed with the Securities and Exchange Commission on August 19, 1999
Registration No. 333-_____
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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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)
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AFFYMETRIX, INC.
1998 STOCK INCENTIVE PLAN
(Full title of the Plan)
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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)
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CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
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
---------- ---------- --------- ------ ----------
<S> <C> <C> <C> <C>
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
</TABLE>
===============================================================================
(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.
<PAGE>
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
<PAGE>
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
<TABLE>
<CAPTION>
Exhibit Number Exhibit
- -------------- -------
<S> <C>
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.
</TABLE>
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
<PAGE>
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
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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
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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.
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/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.
</TABLE>
II-4
<PAGE>
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/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
</TABLE>
II-5
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Number Exhibit
- -------------- -------
<S> <C>
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.
</TABLE>
<PAGE>
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
<PAGE>
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
