As filed with the Securities and Exchange Commission on April 7, 2000
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.
GMS/AFFYMETRIX 1998 STOCK PLAN
(Full title of the Plan)
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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)
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<PAGE>
<TABLE>
<CAPTION>
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
- ----------------------------------------------------- ------------------ ------------------- --------------------- -----------------
<S> <C> <C> <C> <C>
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
====================================================================================================================================
<FN>
(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.
</FN>
</TABLE>
<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, 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.
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
EXHIBIT INDEX
Exhibit Number Exhibit
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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
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
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
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.
<PAGE>
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-
<PAGE>
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-
<PAGE>
(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-
<PAGE>
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
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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.
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<PAGE>
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
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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.
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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:
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Its Optionee
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
