As filed with the Securities and Exchange Commission on May 30, 2012
Registration No. 333-
SECURITIES AND EXCHANGE
COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
AFFYMETRIX, INC.
(Exact Name of Registrant as Specified in Its Charter)
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Delaware
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77-0319159
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(State or Other Jurisdiction of
Incorporation or Organization)
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(I.R.S. Employer
Identification Number)
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3420 CENTRAL EXPRESSWAY
SANTA CLARA, CALIFORNIA 95051
(408) 731-5000
(Address, Including Zip Code, and Telephone Number, Including Area Code, of Registrant’s Principal Executive Offices)
John F. Runkel, Jr.
Executive Vice President, General
Counsel and Secretary
Affymetrix, Inc.
3420 Central Expressway
Santa Clara, California 95051
(408) 731-5000
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code, of Agent For Service)
Copy to:
Sarah K. Solum, Esq.
Davis Polk & Wardwell LLP
1600 El Camino Real
Menlo Park, California 94025
(650) 752-2000
Approximate
date of commencement of proposed sale to the public
: From time to time after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check
the following box.
¨
If any of the securities being
registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following
box.
x
If this Form is filed to register additional
securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same
offering.
¨
If this Form is a post-effective amendment
filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.
¨
If this Form is a registration statement pursuant to General Instruction I.D. or a
post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box.
¨
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed
to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box.
¨
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller
reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):
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Large accelerated filer
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Accelerated filer
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x
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Non-accelerated filer
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(Do not check if a smaller reporting company)
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Smaller reporting company
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CALCULATION OF REGISTRATION FEE
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Title of Each
Class of Securities
to be Registered
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Amount to be
Registered(1)
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Proposed Maximum
Offering Price
Per Unit
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Proposed Maximum
Aggregate Offering Price(1)
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Amount of
Registration Fee(3)
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Common Stock, par value $0.01 per share
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(2)
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(2)
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(2)
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(2)
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Preferred Stock, par value $0.01 per share
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(2)
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(2)
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(2)
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(2)
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Debt Securities
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(2)
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(2)
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(2)
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(2)
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Warrants
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(2)
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(2)
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(2)
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(2)
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Purchase Contracts
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(2)
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(2)
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(2)
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(2)
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Units
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(2)
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(2)
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(2)
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(2)
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Total
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(2)
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(2)
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$200,000,000
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$22,920
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(1)
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An indeterminate amount of securities of each identified class is being registered as may from time to time be offered pursuant to this registration statement at
indeterminate prices, along with an indeterminate number of shares that may be issued upon exercise, settlement, exchange or conversion of securities offered or sold hereunder. These securities may also be sold separately, together or as units with
the other securities registered hereunder. The securities registered hereunder will have an aggregate offering price that does not exceed $200,000,000 or the equivalent in any other currency, currency unit or units, or composite currency or
currencies.
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(2)
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Not required to be included in accordance with General Instruction II.D. of Form S-3.
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(3)
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Estimated solely for the purpose of computing the registration fee. Calculated pursuant to Rule 457(o) of the rules and regulations under the Securities Act.
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The information in this prospectus is not complete and may be changed. We may not sell these
securities until the Registration Statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and it is not soliciting an offer to buy these securities in any state where the
offer or sale is not permitted.
Subject to completion, dated May 30, 2012
PROSPECTUS
$200,000,000
Affymetrix, Inc.
COMMON STOCK
PREFERRED STOCK
DEBT SECURITIES
WARRANTS
PURCHASE CONTRACTS
UNITS
We may offer and
issue shares of common stock and preferred stock, debt securities, warrants, purchase contracts and units, and we may offer and sell these securities from time to time in one or more offerings. This prospectus describes the general terms of these
securities and the general manner in which we will offer them. Specific terms of these securities will be provided in supplements to this prospectus. The prospectus supplements will also describe the specific manner in which we will offer these
securities and may also supplement, update or amend information contained in this document. You should read this prospectus and any prospectus supplement carefully before you invest.
We may offer these securities in amounts, at prices and on terms determined at the time of offering. We may sell the securities directly
to you, through agents we select, or through underwriters and dealers we select. If we use agents, underwriters or dealers to sell these securities, we will name them and describe their compensation in a prospectus supplement.
Our common stock is listed on The NASDAQ Global Select Market under the symbol “AFFX.” On May 29, 2012, the closing price of
our common stock was $4.95 per share. We have not yet determined whether the other securities that may be offered by this prospectus will be listed on any exchange, inter-dealer quotation system or over-the-counter market. If we decide to seek the
listing of any such securities upon issuance, the prospectus supplement relating to those securities will disclose the exchange, quotation system or market on which the securities will be listed.
Investing in these securities involves certain risks. See the sections entitled “
Risk Factors
” in
our most recent Annual Report on Form 10-K and in our most recent Quarterly Report on Form 10-Q, which are incorporated by reference herein.
Neither the
Securities and Exchange Commission nor any state securities commission has approved or disapproved these securities, or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The date of this prospectus is , 2012
TABLE OF CONTENTS
We have not authorized anyone to provide any information or to make any representation other than those
contained or incorporated by reference in this prospectus or any prospectus supplement or free writing prospectus we have prepared or to which we have referred you. We take no responsibility for, and can provide no assurance as to the reliability
of, any other information that others may give you. This prospectus is an offer to sell only the securities offered hereby, but only under circumstances and in jurisdictions where it is lawful to do so. The information contained in or incorporated
by reference in this prospectus or any prospectus supplement or free writing prospectus is current only as of its respective date.
Unless
expressly stated or the context otherwise requires, the terms “we,” “our,” “us,” “the company” and “Affymetrix” refer to Affymetrix, Inc., a Delaware corporation, and its consolidated subsidiaries.
AFFYMETRIX, INC.
Our Business
We
develop, manufacture and sell products and services for genetic analysis to the life science research and clinical healthcare markets. Researchers around the world use our technology to better understand the role that genes play in disease, the
effectiveness and safety of therapies and many other biological factors that affect human well-being. We sell our products to some of the world’s largest pharmaceutical, diagnostic and biotechnology companies, as well as leading academic,
government and not-for profit research institutions. Approximately 25,000 peer-reviewed papers have been published based on work using our products. We have almost 900 employees worldwide and maintain sales and distribution operations across the
United States, Europe, Latin America and Asia.
We were incorporated in California in 1992 and reincorporated in Delaware in
1998. Our principal executive offices are located at 3420 Central Expressway, Santa Clara, CA 95051. Our telephone number is (408) 731-5000. We maintain a website at www.affymetrix.com where general information about us is available. Investors
can obtain copies of our filings with the Securities and Exchange Commission (“SEC”) from this site free of charge, as well as from the SEC website at www.sec.gov. We are not incorporating the contents of our website into this prospectus.
About this Prospectus
This prospectus is part of a registration statement that we filed with the SEC utilizing a “shelf” registration process. Under this shelf process, we may sell any combination of the securities
described in this prospectus in one or more offerings from time to time up to a total dollar amount of $200,000,000. This prospectus provides you with a general description of the securities we may offer. Each time we sell securities, we will
provide a prospectus supplement that will contain specific information about the terms of that offering. The prospectus supplement may also add, update or change information contained in this prospectus. You should read both this prospectus and any
prospectus supplement together with additional information described under the heading “Where You Can Find More Information.”
Risk Factors
You should
carefully consider all of the information in this prospectus and, in particular, you should evaluate the specific risk factors incorporated by reference herein and included or incorporated by reference in any applicable prospectus supplement.
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WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements and other information with the SEC. You may read and copy any document
that we file at the Public Reference Room of the SEC at 100 F Street, N.E., Washington, D.C. 20549. You may obtain information on the operation of the Public Reference Room by calling the SEC at 1-800-SEC-0330. In addition, the SEC maintains an
Internet site at http://www.sec.gov, from which interested persons can electronically access our SEC filings, including the registration statement and the exhibits and schedules thereto.
The SEC allows us to “incorporate by reference” the information we file with them, which means that we can disclose important
information to you by referring you to those documents. The information incorporated by reference is an important part of this prospectus. We incorporate by reference the documents listed below and all documents we file pursuant to
Section 13(a), 13(c), 14, or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) (i) on or after the date of this prospectus and prior to the termination of the offering under this prospectus and any
prospectus supplement and (ii) after the date of the filing of this registration statement and prior to its effectiveness (other than, in each case, documents or information deemed to have been furnished and not filed in accordance with SEC
rules).
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(a)
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Annual Report on Form 10-K for the year ended December 31, 2011;
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(b)
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Definitive Proxy Statement on Schedule 14A filed with the SEC on March 30, 2012 to the extent incorporated by reference in the Annual Report on Form 10-K for the
year ended December 31, 2011;
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(c)
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Quarterly Report on Form 10-Q for the quarter ended March 31, 2012;
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(d)
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Current Reports on Form 8-K filed on January 10, 2012, January 25, 2012, February 3, 2012, February 8, 2012, March 6, 2012, May 3, 2012,
May 4, 2012, May 7, 2012, May 14, 2012 and May 30, 2012; and
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(e)
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The description of our common stock contained in the Registration Statement on Form 8-A filed with the SEC on April 16, 1996.
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Any statement in a document incorporated by reference into this prospectus will be deemed to be modified or superseded for purposes of
this prospectus to the extent a statement contained in this or any other subsequently filed document that is incorporated by reference into this prospectus modifies or supersedes such statement. Any statement so modified or superseded will be not
deemed, except as so modified or superseded, to constitute a part of this prospectus.
You may request, and we will provide
you with, a copy of these filings at no cost, by calling us at (408) 731-5000 or by writing to us at the following address:
Affymetrix, Inc.
3420 Central Expressway
Santa Clara, CA 95051
SPECIAL NOTE ON
FORWARD-LOOKING STATEMENTS
This prospectus, any prospectus supplement and the documents incorporated by reference herein
and therein, contain forward-looking statements. In some cases, you can identify these statements by forward-looking words such as “may,” “might,” “will,” “could,” “would,” “anticipates,”
“intends,” “plans,” “believes,” “seeks,” “targets,” “estimates,” “looks for,” “looks to” “should,” “expects,” “predicts,”
“potential” or “continue,” the negative of these terms and other comparable terminology. We claim the protection of the safe harbor for forward-looking statements contained in the Private Securities Litigation Reform Act of 1995
for all forward-looking statements. These forward-looking statements, which are subject to risks, uncertainties and assumptions
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about us, may include projections of our future financial performance, our anticipated growth strategies and anticipated trends in our business. Such statements are based on our current
expectations. Actual results or business conditions may differ materially from those projected or suggested in such forward-looking statements as a result of various factors, including, but not limited to, risk relating to our ability to consummate
the acquisition of eBioscience under the terms of the amended merger agreement and our ability to successfully integrate and realize the anticipated benefits of the acquisition; the risk that we will not obtain additional financing contemplated in
the amended merger agreement on adequate terms, or at all; risks associated with our ability to offer new products and technologies; our capacity to identify and capitalize upon emerging market opportunities; market acceptance of our products versus
those of our competitors; uncertainties related to cost and pricing of Affymetrix products; fluctuations in overall capital spending in the academic and biotechnology sectors; changes in government funding policies; our dependence on collaborative
partners; the size and structure of our current sales, technology and technical support organizations; uncertainties relating to our suppliers and manufacturing processes; our ability to achieve and sustain higher levels of revenue, improved gross
margins and reduced operating expenses; personnel retention; global credit and financial market conditions; uncertainties relating to Federal and Drug Administration and other regulatory approvals; risks relating to intellectual property of others
and the uncertainties of patent protection and litigation; volatility of the market price of our common stock; unpredictable fluctuations in quarterly revenues; the risk factors incorporated by reference under Part I, Item 1A of our Quarterly
Report on Form 10-Q for the three months ended March 31, 2012 and Part I, Item 1A of our Annual Report on Form 10-K for the year ended December 31, 2011; and other factors described elsewhere in this prospectus or in our current and
future filings with the SEC.
Although we believe the expectations reflected in the forward-looking statements are reasonable,
we cannot guarantee future results, level of activity, performance or achievements. We undertake no obligation to publicly update or revise any forward-looking statements, whether as a result of new information, future events or risks. New
information, future events or risks may cause the forward-looking events we discuss in this prospectus not to occur. You should consider any forward-looking statements in light of this explanation, and we caution you about relying on forward-looking
statements.
RISK FACTORS
Investment in our securities involves a high degree of risk. You should consider carefully the risk factors discussed in the sections
entitled “Risk Factors” contained in our most recent Annual Report on Form 10-K and our most recent Quarterly Report on Form 10-Q filed with the SEC, both of which are incorporated herein by reference in their entirety, as well as other
information in this prospectus and any prospectus supplement before purchasing any of our securities. Each of these risk factors could adversely affect our business, operating results and financial condition, as well as adversely affect the value of
an investment in our securities.
USE OF PROCEEDS
Unless otherwise indicated in a prospectus supplement, we intend to use the net proceeds from the sale of the securities that we may
offer from time to time under this prospectus and any applicable prospectus supplement or free writing prospectus to pay a portion of the purchase price for our pending acquisition of eBioscience and to use any remainder for general corporate
purposes, including working capital, acquisitions, retirement of debt and other business opportunities. We may also invest the proceeds in certificates of deposit, United States government securities or certain other interest-bearing securities. If
we decide to use the net proceeds from a particular offering of securities for a specific purpose other than as set forth above, we will describe that in the related prospectus supplement.
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DIVIDEND POLICY
We have never paid cash dividends on our common stock. We currently intend to retain all future earnings, if any, for use in our business
and do not anticipate paying any cash dividends on our common stock in the foreseeable future.
RATIO OF EARNINGS TO FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
The following table sets forth our ratio of earnings to fixed charges for the periods indicated. The ratio of earnings to fixed charges
is computed by dividing fixed charges into earnings before income taxes plus fixed charges. Fixed charges consist of interest expense and that portion of net rental expense deemed representative of interest. We do not have any shares of preferred
stock outstanding, so our ratio of earnings to fixed charges and preferred stock dividends for any given period is equivalent to our ratio of earnings to fixed charges.
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Three Months
Ended
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Year Ended December 31,
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March 31,
2012
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2011
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2010
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2009
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2008
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2007
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Ratio of earnings to fixed charges
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—
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—
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—
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—
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—
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5.16
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Deficiency of earnings to cover fixed charges (in thousands)
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$
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4,360
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$
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25,680
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$
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8,229
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$
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22,941
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$
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242,012
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DESCRIPTION OF CAPITAL STOCK
Our authorized capital stock consists of 200,000,000 shares of our common stock, par value $0.01 per share, and 5,000,000 shares of
preferred stock, par value $0.01 per share.
The following descriptions are summaries of the material terms of our restated
certificate of incorporation and bylaws. Reference is made to the more detailed provisions of, and the descriptions are qualified in their entirety by reference to, our restated certificate of incorporation and bylaws, copies of which are filed with
the Securities and Exchange Commission.
Common stock
As of May 24, 2012, there were 70,627,084 shares of our common stock outstanding.
Voting
. The holders of our common stock are entitled to one vote per share on all matters to be voted upon by the stockholders.
Holders of our common stock are not authorized by our certificate of incorporation to cumulate votes for the election of directors. A nominee for director is elected to the board if votes cast for such nominee exceed votes cast against such
nominee’s election; provided, however, if the number of nominees exceeds the number of directors to be elected, the directors are elected by a plurality of the shares present in person or represented by proxy and entitled to vote.
Dividends
. Subject to preferences that may be applicable to any outstanding preferred stock, the holders of common stock are
entitled to receive ratably such dividends, if any, as may be declared from time to time by our board of directors out of funds legally available therefor.
Liquidation, Dissolution and Winding-up
. In the event of our liquidation, dissolution or winding up, the holders of common stock are entitled to share ratably in all assets remaining after payment
of liabilities, subject to prior distribution rights of preferred stock, if any, then outstanding.
Preemptive Rights,
Conversion and Redemption
. Our common stock has no preemptive or conversion rights or other subscription rights. There are no redemption or sinking fund provisions applicable to the common stock.
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Undesignated preferred stock
Our board of directors has the authority to issue preferred stock in one or more series and to fix the rights, preferences, privileges and restrictions thereof, including dividend rights, dividend rates,
conversion rights, voting rights, terms of redemption, redemption prices, liquidation preferences and the number of shares constituting any series or the designation of such series, without further vote or action by the stockholders. The issuance of
preferred stock may have the effect of delaying, deferring or preventing a change in control of Affymetrix without further action by the stockholders and may adversely affect the voting and other rights of the holders of common stock. Our
certificate of incorporation and related certificate of designation designate 1,634,522 shares of preferred stock as Series AA preferred stock.
Series AA preferred stock
As of May 24, 2012, there were no shares of Series AA preferred stock outstanding.
Voting
. The holders of our Series AA preferred stock shall have full voting rights and powers equal to the voting rights and
powers of the holders of common stock and shall be entitled to vote together with the holders of common stock. The holders of our Series AA preferred stock are entitled to one vote for each share of common stock into which such Series AA preferred
stock is convertible.
Dividends
. Subject to preferences that may be applicable to any outstanding preferred stock, the
holders of our Series AA preferred stock are entitled to receive cash dividends prior and in preference to any declaration or payment of any dividend on our common stock, at the rate per share of $1.99 payable per annum, in two equal installments on
June 30 and December 31 of each year. Such dividends are cumulative. In addition, holders of our Series AA preferred stock are entitled to receive an amount equal to any dividend paid on our common stock. Such dividends are not cumulative.
Liquidation, Dissolution and Winding-up
. In the event of our liquidation, dissolution or winding-up, the holders of
our Series AA preferred stock are entitled to receive, prior and in preference to any distribution of any of our assets to holders of our common stock, an amount per share equal to the sum of (i) $30.59 for each outstanding share of Series AA
Preferred Stock, (ii) accrued and unpaid dividends and (iii) a per share amount equal to the difference obtained by subtracting (A) the product of 10% of the annual per share dividend multiplied by a fraction, the numerator of which
is the number of days elapsed since the date upon which the first share of Series AA preferred stock was first issued and the denominator of which is 365 from (B) the annual per share dividend (the “Liquidation Preference”).
Conversion
. Each share of Series AA preferred stock is convertible, at the option of the holder, into common stock. In
addition, the holders of a majority of our Series AA preferred stock may consent to the conversion of all Series AA preferred stock. In either such case, the initial conversion price is $39.77 per share, subject to adjustment.
Redemption
. We may redeem the Series AA preferred stock at any time for cash in an amount equal to the Liquidation Preference set
forth above. A majority of holders of our Series AA preferred stock may request that we redeem their shares for cash in an amount equal to $30.59 per share plus accrued and unpaid dividends.
Preemptive Rights
. The Series AA preferred stock has no preemptive rights or other subscription rights.
Anti-takeover effects of Delaware law
We are subject to the “business combination” provisions of Section 203 of the Delaware General Corporation Law. In general, such provisions prohibit a publicly held Delaware corporation
from engaging in various “business combination” transactions with any interested stockholder for a period of three years after the date of the transaction in which the person became an interested stockholder, unless
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the transaction is approved by the board of directors prior to the date the interested stockholder obtained such status;
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upon consummation of the transaction which resulted in the stockholder becoming an interested stockholder, the interested stockholder owned at least
85% of the voting stock of the corporation outstanding at the time the transaction commenced; or
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on or subsequent to such date the business combination is approved by the board of directors and authorized at an annual or special meeting of
stockholders by the affirmative vote of at least 66 2/3% of the outstanding voting stock which is not owned by the interested stockholder.
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A “business combination” is defined to include mergers, asset sales and other transactions resulting in financial benefit to a stockholder. In general, an “interested stockholder” is a
person who, together with affiliates and associates, owns (or within three years prior to the determination of interested stockholder status, did own) 15% or more of a corporation’s voting stock.
The statute could prohibit or delay mergers or other takeover or change in control attempts with respect to us and, accordingly, may
discourage attempts to acquire us even though such a transaction may offer our stockholders the opportunity to sell their stock at a price above the prevailing market price.
Advance notice of proposals and nominations
Our bylaws establish advance
notice procedures for stockholder proposals and nominations of candidates for election as directors.
Limits on written consents
Our certificate of incorporation provides that any action required or permitted to be taken by our stockholders must be
effected at a duly called annual or special meeting and may not be effected by any consent in writing by such stockholders.
Limits on
special meetings
Our bylaws provide that special meetings of stockholders may be called at the request of the board of
directors, the chairman of the board of directors or our president.
Transfer agent and registrar
The transfer agent and registrar for our common stock is American Stock Transfer & Trust Company.
NASDAQ listing
Our
common stock is listed on The NASDAQ Global Select Market under the symbol “AFFX.”
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DESCRIPTION OF DEBT SECURITIES
This prospectus describes certain general terms and provisions of the debt securities. The debt securities may be issued from time to
time in one or more series pursuant to, in the case of senior debt securities, a senior indenture, and in the case of subordinated debt securities, a subordinated indenture, in each case to be entered into between Affymetrix, Inc. and The Bank of
New York Mellon Trust Company, N.A., as trustee (the “trustee”), or pursuant to a board resolution and set forth in an officer’s certificate or supplemental indenture to the relevant indenture. The senior indenture and the
subordinated indenture are referred to herein as the “indentures.” The terms of the debt securities will include those set forth in the applicable indenture (as supplemented by any relevant officer’s certificate or supplemental
indenture) and those made a part thereof by the Trust Indenture Act of 1939, as amended. When we offer to sell a particular series of debt securities, we will describe the specific terms for the securities in a supplement to this prospectus. The
prospectus supplement will also indicate whether the general terms and provisions described in this prospectus apply to a particular series of debt securities.
Because the following is only a summary of selected provisions of the indentures and the debt securities, it does not contain all information that may be important to you. This summary is not complete and
is qualified in its entirety by reference to the indentures and any supplemental indentures thereto or officer’s certificate or board resolution related thereto. We urge you to read the indentures because the indentures, not this description,
define the rights of the holders of the debt securities. The senior indenture and the subordinated indenture will be substantially in the forms included as exhibits to the registration statement of which this prospectus is a part.
As used in this “Description of Debt Securities,” the terms “we,” “our,” “us,” “the
company” and “Affymetrix” refer to Affymetrix, Inc., a Delaware corporation, and do not, unless otherwise specified, include our subsidiaries.
General
The indentures will not limit the amount of debt securities which
we may issue. We have the right to “reopen” a previous issue of a series of debt securities by issuing additional debt securities of such series. We may issue debt securities up to an aggregate principal amount as we may authorize from
time to time. The senior debt securities will rank equally with all of our other senior and unsubordinated debt. Our secured debt, if any, will be effectively senior to the senior debt securities to the extent of the value of the assets securing
such debt. The subordinated debt securities will be subordinate and junior in right of payment to all of our present and future senior indebtedness to the extent and in the manner described in the prospectus supplement and as set forth in the board
resolution, officer’s certificate or supplemental indenture relating to such offering. The debt securities will be exclusively our obligations and not of our subsidiaries and therefore the debt securities will be structurally subordinate to the
debt and other liabilities (including trade payables) of any of our subsidiaries. The prospectus supplement will describe the terms of any debt securities being offered, including:
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any limit upon the aggregate principal amount;
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the date or dates on which the principal is payable;
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the rate or rates at which the debt securities shall bear interest, if any, or the method by which such rate shall be determined;
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the date or dates from which interest shall accrue;
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the date or dates on which interest shall be payable;
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the record dates for the determination of holders to whom interest is payable;
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the right, if any, to extend the interest payment periods and the duration of such extension;
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the place or places where the principal of and any interest shall be payable;
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the price or prices at which, the period or periods within which and the terms and conditions upon which debt securities may be redeemed, pursuant to
any sinking fund or otherwise;
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our obligation, if any, to redeem, purchase or repay the debt securities pursuant to any sinking fund or otherwise or at the option of a holder
thereof;
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if applicable, the price or prices at which and the period or periods within which and the terms and conditions upon which the debt securities shall be
redeemed, purchased or repaid, in whole or in part;
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if other than denominations of $2,000 and any multiple of $1,000 in excess thereof, the denominations in which the debt securities of the series shall
be issuable;
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the percentage of the principal amount at which the debt securities will be issued and, if other than the principal amount thereof, the portion of such
principal amount which shall be payable upon declaration of acceleration of the maturity thereof or provable in bankruptcy;
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the terms, if any, pursuant to which any debt securities will be subordinate to any of our other debt;
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whether the debt securities are issuable under Rule 144A or Regulation S and, in such case, any provisions unique to such form of issuance including
any transfer restrictions or exchange and registration rights;
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any and all other terms of the series including any terms which may be required by or advisable under U.S. law or regulations or advisable in
connection with the marketing of the debt securities;
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whether the debt securities are issuable as global securities or definitive certificates and, in such case, the identity for the depositary;
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any deletion from, modification of or addition to the events of default or covenants;
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any provisions granting special rights to holders when a specified event occurs;
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whether and under what circumstances we will pay additional amounts on the debt securities held by a person who is not a U.S. person in respect of any
tax, assessment or governmental charge withheld or deducted;
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any special tax implications of the debt securities;
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any trustees, authenticating or paying agents, transfer agents or registrars or any other agents with respect to the debt securities;
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any guarantor or co-issuers;
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any special interest premium or other premium;
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whether the debt securities are convertible or exchangeable into common stock or other of our equity securities and the terms and conditions upon which
such conversion or exchange shall be effected; and
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the currency in which payments shall be made, if other than U.S. dollars.
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We may from time to time, without notice to or the consent of the holders of any series of debt securities, create and issue further debt securities of any such series ranking equally with the debt
securities of such series in all respects (or in all respects other than the payment of interest accruing prior to the issue date of such further debt securities or except for the first payment of interest following the issue date of such further
debt securities); provided that if such additional debt securities are not fungible with the initial debt securities of such series offered hereby for U.S. federal income tax purposes, such additional debt securities will have a separate CUSIP
number.
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Conversion or Exchange Rights
Debt securities may be convertible into or exchangeable for our other securities or property. The terms and conditions of conversion or
exchange will be set forth in the applicable prospectus supplement. The terms will include, among others, the following:
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the conversion or exchange price;
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the conversion or exchange period;
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provisions regarding the ability of us or the holder to convert or exchange the debt securities;
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events requiring adjustment to the conversion or exchange price; and
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provisions affecting conversion or exchange in the event of our redemption or required repurchase of the debt securities.
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Events of Default
When
we use the term “Event of Default” in the indentures with respect to the debt securities of any series, here are some examples of what we mean:
(1) default in paying interest on the debt securities when it becomes due and the default continues for a period of 30 days or more;
(2) default in paying principal, or premium, or sinking fund installment, if any, on the debt securities when due;
(3) default in the performance, or breach, of any covenant in the indenture (other than defaults specified in
clause (1) or (2) above) and the default or breach continues for a period of 90 days or more after we receive written notice from the trustee or the trustee receives notice from the holders of at least 25% in aggregate principal amount of
the outstanding debt securities of all series of senior debt securities or subordinated debt securities, as the case may be, that are affected (voting together as a single class);
(4) certain events of bankruptcy, insolvency, reorganization, administration or similar proceedings with respect to us has
occurred; or
(5) any other Events of Default set forth in a prospectus supplement relating to such series of
debt securities.
If an Event of Default (other than an Event of Default specified in clause (4)) under the applicable
indenture occurs with respect to the debt securities of any series and is continuing, then the trustee may and, at the direction of the holders of at least 25% in aggregate principal amount of the outstanding debt securities of all such affected
series (voting together as a single class), will by written notice, require us to repay immediately the entire principal amount of the outstanding debt securities of all such affected series, together with all accrued and unpaid interest and
premium, if any.
If an Event of Default under the applicable indenture specified in clause (4) occurs and is continuing,
then the entire principal amount of the outstanding debt securities issued and outstanding under such indenture will automatically become due immediately and payable without any declaration or other act on the part of the trustee or any holder.
After a declaration of acceleration or any automatic acceleration under clause (4) described above under either
indenture, the holders of a majority in principal amount of outstanding debt securities of all series of senior debt securities or subordinated debt securities, as the case may be, that are affected (voting together as a single class) may rescind
this accelerated payment requirement if all existing Events of Default, except for nonpayment of the principal and interest on the debt securities of those series that has become due solely as a result of the accelerated payment requirement, have
been cured or waived and if the rescission of acceleration would not
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conflict with any judgment or decree. The holders of a majority in principal amount of outstanding debt securities of all series of senior debt securities or subordinated debt securities, as the
case may be, that are affected (voting together as a single class) also have the right to waive past defaults, except a default in paying principal or interest on any outstanding debt security, or in respect of a covenant or a provision that cannot
be modified or amended without the consent of all holders of the debt securities of each such series.
Holders of at least 25%
in principal amount of outstanding debt securities of all series of senior debt securities or subordinated debt securities, as the case may be, that are affected (voting together as a single class) may seek to institute a proceeding only after they
have made written request, and offered indemnity as the trustee may reasonably require, to the trustee to institute a proceeding and the trustee has failed to do so within 60 days after it received this notice. In addition, within this 60-day period
the trustee must not have received directions inconsistent with this written request by holders of a majority in principal amount of the outstanding debt securities of all such series affected under the applicable indenture (voting together as a
single class). These limitations do not apply, however, to a suit instituted by a holder of a debt security for the enforcement of the payment of principal, interest or any premium (or, in the case of convertible debt securities, for the payment or
delivery of the consideration due upon conversion) on or after the due dates for such payment or delivery.
During the
existence of an Event of Default of which a responsible officer of the trustee has actual knowledge or has received written notice from us or any holder of the senior debt securities or the subordinated debt securities, as the case may be, the
trustee is required to exercise the rights and powers vested in it under the applicable indenture and use the same degree of care and skill in its exercise as a prudent person would under the circumstances in the conduct of that person’s own
affairs. If an Event of Default has occurred and is continuing, the trustee is not under any obligation to exercise any of its rights or powers at the request or direction of any of the holders of such debt securities unless the holders have offered
to the trustee security or indemnity as the trustee may reasonably require. Subject to certain provisions, the holders of a majority in principal amount of the outstanding debt securities of all series of senior debt securities or subordinated debt
securities, as the case may be, that are affected (voting together as a single class) have the right to direct the time, method and place of conducting any proceeding for any remedy available to the trustee, or exercising any trust, or power
conferred on the trustee under the applicable indenture.
The trustee will, within 60 days after any default occurs under the
senior indenture or the subordinated indenture, as the case may be, give notice of the default to the holders of the debt securities of that series, unless the default was already cured or waived. Unless there is a default in paying principal,
interest or any premium when due (or a default in the payment or delivery of the consideration due upon conversion), the trustee can withhold giving notice to the holders if it determines in good faith that the withholding of notice is in the
interest of the holders.
We are required to furnish to the trustee an annual statement as to compliance with all conditions
and covenants under the indentures. We are also required to deliver to the trustee, within 30 days after the occurrence thereof, written notice of any events which would constitute certain defaults, their status and what action we are taking or
propose to take in respect thereof.
Modification and Waiver
We and the trustee may amend or modify the indentures or the debt securities of any series without the consent of any holder of debt securities in order to:
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establish the form or forms of debt securities of any series;
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provide for uncertificated debt securities of any series in addition to or in place of certificated debt securities of the applicable series;
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provide for the assumption by our successor, if any, to our obligations to holders of any outstanding debt securities of any series in compliance with
the provisions of the applicable indenture;
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add to our covenants or events of default for the benefit of the holders of the debt securities of a series or surrender any right or power conferred
upon us under the applicable indenture;
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evidence and provide for the acceptance of appointment by a successor trustee under the applicable indenture;
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cure ambiguities, defects or inconsistencies;
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secure the debt securities of any series;
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provide for or add guarantors with respect to the debt securities of any series;
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comply with any requirement of the SEC in connection with the qualification of either indenture under the Trust Indenture Act;
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increase the applicable conversion rate in the case of convertible debt securities, provided such increase is in accordance with the terms of the
applicable indenture or will not adversely affect the interests of the holders of such debt securities;
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conform any provision in the applicable indenture to this “Description of Debt Securities” or the description of any debt securities issued
thereunder to the description of such securities in the applicable prospectus supplement or term sheet setting forth the final terms of such debt securities;
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supplement any of the provisions of the applicable indenture to such extent as shall be necessary to permit or facilitate the discharge of any series
of debt securities issued thereunder, provided that such change or modification does not adversely affect the interests of the holders of such debt securities; or
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make any other change that would not reasonably be expected to adversely affect the rights of any holder in any material respect.
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Other amendments and modifications of the indentures or the debt securities may be made with the consent of
the holders of not less than a majority of the aggregate principal amount of the outstanding debt securities of all series issued under the applicable indenture affected by the amendment or modification (voting together as a single class), and our
compliance with any provision of the senior indenture or the subordinated indenture with respect to any series of debt securities may be waived by written notice to us and the trustee by the holders of a majority of the aggregate principal amount of
the outstanding debt securities of all such series issued under the applicable indenture affected by the waiver (voting together as a single class). However, no modification or amendment to the senior indenture or the subordinated indenture may,
without the consent of the holder of each outstanding senior debt security or subordinated debt security affected:
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reduce the rate of or extend the stated time for payment of interest on any debt securities;
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reduce the principal amount of, or extend the stated maturity, of any debt securities;
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amend or modify the redemption or required repurchase provisions of the debt securities in any manner adverse to holders or reduce the price payable
upon any such redemption or repurchase;
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if the debt securities are convertible, make any change that impairs or adversely affects the conversion rights of any debt securities;
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change the currency in which amounts on any debt securities are payable;
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impair the right to institute suit for the enforcement of any payment on the debt securities;
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reduce the quorum or voting requirements under the applicable indenture;
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adversely affect the ranking of the debt securities of any series;
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make any change in the amendment provisions that require each holder’s consent or in the waiver provisions of the applicable indenture;
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reduce the percentage in aggregate principal amount of debt securities whose holders must consent to any modification of the applicable indenture; or
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modify any of the subordination provisions or the definition of senior indebtedness applicable to any subordinated debt securities in a manner adverse
to the holders of those securities;
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Covenants
Principal and Interest
We covenant to pay the principal of and interest on the debt securities when due and in the manner provided in the indentures.
Consolidation, Merger or Sale of Assets
We will not consolidate or combine
with or merge with or into or, directly or indirectly, sell, assign, convey, lease, transfer or otherwise dispose of all or substantially all of our assets to any person or persons in a single transaction or through a series of transactions, unless:
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we shall be the continuing person or, if we are not the continuing person, the resulting, surviving or transferee person (the “surviving
entity”) is (a) organized and existing under the laws of the United States or any State or territory or (b) organized under the laws of a jurisdiction outside the United States and has a class of common stock (including ordinary
shares or American depository shares) traded on a national securities exchange in the United States;
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the surviving entity will expressly assume all of our obligations under the applicable indenture and the debt securities issued thereunder, and will,
if required by law to effectuate the assumption, execute a supplemental indenture to such indenture, in a form satisfactory to the trustee, which will be delivered to the trustee;
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immediately after giving effect to such transaction or series of transactions on a pro forma basis, no default has occurred and is continuing under the
applicable indenture; and
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we or the surviving entity will have delivered to the trustee an officer’s certificate and opinion of counsel stating that the transaction or
series of transactions and a supplemental indenture, if any, complies with this covenant and that all conditions precedent in the applicable indenture relating to the transaction or series of transactions have been satisfied.
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If any consolidation or merger or any sale, assignment, conveyance, lease, transfer or other disposition of
all or substantially all our assets occurs in accordance with the applicable indenture, the successor person will succeed to, and be substituted for, and may exercise every right and power of ours under such indenture with the same effect as if such
successor person had been named in our place in such indenture. We will (except in the case of a lease) be discharged from all obligations and covenants under such indenture and any debt securities issued thereunder.
Existence
Except as permitted under “—Consolidation, Merger and Sale of Assets,” the indentures require us to do or cause to be done
all things necessary to preserve and keep in full force and effect our existence, rights and franchises; provided, however, that we shall not be required to preserve any right or franchise if we determine that their preservation is no longer
desirable in the conduct of business.
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Satisfaction and Discharge
We may terminate our obligations under either the senior indenture or the subordinated indenture, when:
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all the debt securities of any series issued thereunder that have been authenticated and delivered have been accepted by the trustee for cancellation;
or
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all the debt securities of any series issued thereunder that have not been accepted by the trustee for cancellation have become due and payable or,
except in the case of convertible debt securities, are by their terms to become due and payable within one year (a “discharge”), and (i) we have, except in the case of convertible debt securities, made irrevocable arrangements satisfactory
to the trustee for the giving of notice of redemption by such trustee in our name and at our expense and (ii) we have irrevocably deposited or caused to be deposited with the trustee sufficient funds (and securities, solely with respect to any
conversion obligation, if applicable) to pay and discharge the entire indebtedness on the series of debt securities to pay principal, interest and any premium (or to pay or deliver the consideration due upon conversion);
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we have paid or caused to be paid all other sums then due and payable under such indenture; and
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we have delivered to the trustee an officer’s certificate and an opinion of counsel, each stating that all conditions precedent under such
indenture relating to the satisfaction and discharge of the indenture have been complied with.
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Unclaimed Funds
All funds deposited with the trustee or any paying agent for the payment of principal, interest, premium or additional
amounts in respect of the debt securities under either the senior indenture or the subordinated indenture that remain unclaimed for two years after the maturity date of such debt securities will be repaid to us upon our request. Thereafter, any
right of any noteholder to such funds shall be enforceable only against us, and the trustee and paying agents will have no liability therefor.
Governing Law
The
indentures and the debt securities for all purposes shall be governed by and construed in accordance with the laws of the State of New York.
Subordination
The
indebtedness evidenced by the subordinated debt securities is subordinate to the prior payment in full of all our senior indebtedness, as defined in the subordinated indenture. During the continuance beyond any applicable grace period of any default
in the payment of principal, premium, interest or any other payment due on any of our senior indebtedness, we may not make any payment of principal of, or premium, if any, or interest on the subordinated debt securities. In addition, upon any
payment or distribution of our assets upon any dissolution, winding up, liquidation or reorganization, the payment of the principal of, or premium, if any, and interest on the subordinated debt securities will be subordinated to the extent provided
in the subordinated indenture in right of payment to the prior payment in full of all our senior indebtedness. Because of this subordination, if we dissolve or otherwise liquidate, holders of our subordinated debt securities may receive less,
ratably, than holders of our senior indebtedness. The subordination provisions do not prevent the occurrence of an event of default under the subordinated indenture.
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The term “senior indebtedness” of a person means with respect to such person the
principal of, premium, if any, interest on, and any other payment due pursuant to any of the following, whether outstanding on the date of the subordinated indenture or incurred by that person in the future:
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all of the indebtedness of that person for money borrowed, including any indebtedness secured by a mortgage or other lien which is (1) given to
secure all or part of the purchase price of property subject to the mortgage or lien, whether given to the vendor of that property or to another lender, or (2) existing on property at the time that person acquires it;
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all of the indebtedness of that person evidenced by notes, debentures, bonds or other securities sold by that person for money;
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all of the lease obligations which are capitalized on the books of that person in accordance with generally accepted accounting principles as in effect
on the date of the subordinated indenture;
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all indebtedness of others of the kinds described in the first two bullet points above and all lease obligations of others of the kind described in the
third bullet point above that the person, in any manner, assumes or guarantees or that the person in effect guarantees through an agreement to purchase, whether that agreement is contingent or otherwise; and
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all renewals, extensions or refinancings of indebtedness of the kinds described in the first, second or fourth bullet point above and all renewals or
extensions of leases of the kinds described in the third or fourth bullet point above;
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unless
, in
the case of any particular indebtedness, lease, renewal, extension or refinancing, the instrument or lease creating or evidencing it or the assumption or guarantee relating to it expressly provides that such indebtedness, lease, renewal, extension
or refinancing is not superior in right of payment to the subordinated debt securities. Our senior debt securities constitute senior indebtedness for purposes of the subordinated indenture.
Concerning Our Relationship with the Trustee
We maintain ordinary banking
relationships and credit facilities with affiliates of the trustee.
DESCRIPTION OF WARRANTS
We may issue warrants to purchase our debt or equity securities or securities of third parties or other rights, including
rights to receive payment in cash or securities based on the value, rate or price of one or more specified commodities, currencies, securities or indices, or any combination of the foregoing. Warrants may be issued independently or together with any
other securities and may be attached to, or separate from, such securities. Each series of warrants will be issued under a separate warrant agreement to be entered into between us and a warrant agent. The terms of any warrants to be issued and a
description of the material provisions of the applicable warrant agreement will be set forth in the applicable prospectus supplement.
DESCRIPTION OF PURCHASE CONTRACTS
We may issue
purchase contracts for the purchase or sale of:
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debt or equity securities issued by us or securities of third parties, a basket of such securities, an index or indices or such securities or any
combination of the above as specified in the applicable prospectus supplement;
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Each purchase contract will entitle the holder thereof to purchase or sell, and obligate us
to sell or purchase, on specified dates, such securities, currencies or commodities at a specified purchase price, which may be based on a formula, all as set forth in the applicable prospectus supplement. We may, however, satisfy our obligations,
if any, with respect to any purchase contract by delivering the cash value of such purchase contract or the cash value of the property otherwise deliverable or, in the case of purchase contracts on underlying currencies, by delivering the underlying
currencies, as set forth in the applicable prospectus supplement. The applicable prospectus supplement will also specify the methods by which the holders may purchase or sell such securities, currencies or commodities and any acceleration,
cancellation or termination provisions or other provisions relating to the settlement of a purchase contract.
The purchase
contracts may require us to make periodic payments to the holders thereof or vice versa, which payments may be deferred to the extent set forth in the applicable prospectus supplement, and those payments may be unsecured or prefunded on some basis.
The purchase contracts may require the holders thereof to secure their obligations in a specified manner to be described in the applicable prospectus supplement. Alternatively, purchase contracts may require holders to satisfy their obligations
thereunder when the purchase contracts are issued. Our obligation to settle such pre-paid purchase contracts on the relevant settlement date may constitute indebtedness. Accordingly, pre-paid purchase contracts will be issued under either the senior
indenture or the subordinated indenture.
DESCRIPTION OF UNITS
As specified in the applicable prospectus supplement, we may issue units consisting of one or more purchase contracts, warrants, debt
securities, shares of preferred stock, shares of common stock or any combination of such securities.
FORMS OF SECURITIES
Each debt security, warrant and unit will be represented either by a certificate issued in
definitive form to a particular investor or by one or more global securities representing the entire issuance of securities. Certificated securities in definitive form and global securities will be issued in registered form. Definitive securities
name you or your nominee as the owner of the security, and in order to transfer or exchange these securities or to receive payments other than interest or other interim payments, you or your nominee must physically deliver the securities to the
trustee, registrar, paying agent or other agent, as applicable. Global securities name a depositary or its nominee as the owner of the debt securities, warrants or units represented by these global securities. The depositary maintains a computerized
system that will reflect each investor’s beneficial ownership of the securities through an account maintained by the investor with its broker/dealer, bank, trust company or other representative, as we explain more fully below.
Global Securities
We
may issue the registered debt securities, warrants and units in the form of one or more fully registered global securities that will be deposited with a depositary or its nominee identified in the applicable prospectus supplement and registered in
the name of that depositary or nominee. In those cases, one or more registered global securities will be issued in a denomination or aggregate denominations equal to the portion of the aggregate principal or face amount of the securities to be
represented by registered global securities. Unless and until it is exchanged in whole for securities in definitive registered form, a registered global security may not be transferred except as a whole by and among the depositary for the registered
global security, the nominees of the depositary or any successors of the depositary or those nominees.
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If not described below, any specific terms of the depositary arrangement with respect to any
securities to be represented by a registered global security will be described in the prospectus supplement relating to those securities. We anticipate that the following provisions will apply to all depositary arrangements.
Ownership of beneficial interests in a registered global security will be limited to persons, called participants, that have accounts
with the depositary or persons that may hold interests through participants. Upon the issuance of a registered global security, the depositary will credit, on its book-entry registration and transfer system, the participants’ accounts with the
respective principal or face amounts of the securities beneficially owned by the participants. Any dealers, underwriters or agents participating in the distribution of the securities will designate the accounts to be credited. Ownership of
beneficial interests in a registered global security will be shown on, and the transfer of ownership interests will be effected only through, records maintained by the depositary, with respect to interests of participants, and on the records of
participants, with respect to interests of persons holding through participants. The laws of some states may require that some purchasers of securities take physical delivery of these securities in definitive form. These laws may impair your ability
to own, transfer or pledge beneficial interests in registered global securities.
So long as the depositary, or its nominee,
is the registered owner of a registered global security, that depositary or its nominee, as the case may be, will be considered the sole owner or holder of the securities represented by the registered global security for all purposes under the
applicable indenture, warrant agreement or unit agreement. Except as described below, owners of beneficial interests in a registered global security will not be entitled to have the securities represented by the registered global security registered
in their names, will not receive or be entitled to receive physical delivery of the securities in definitive form and will not be considered the owners or holders of the securities under the applicable indenture, warrant agreement or unit agreement.
Accordingly, each person owning a beneficial interest in a registered global security must rely on the procedures of the depositary for that registered global security and, if that person is not a participant, on the procedures of the participant
through which the person owns its interest, to exercise any rights of a holder under the applicable indenture, warrant agreement or unit agreement. We understand that under existing industry practices, if we request any action of holders or if an
owner of a beneficial interest in a registered global security desires to give or take any action that a holder is entitled to give or take under the applicable indenture, warrant agreement or unit agreement, the depositary for the registered global
security would authorize the participants holding the relevant beneficial interests to give or take that action, and the participants would authorize beneficial owners owning through them to give or take that action or would otherwise act upon the
instructions of beneficial owners holding through them.
Principal, premium, if any, and interest payments on debt securities
and any payments to holders with respect to warrants or units represented by a registered global security registered in the name of a depositary or its nominee will be made to the depositary or its nominee, as the case may be, as the registered
owner of the registered global security. None of Affymetrix, the trustee, any warrant agent, unit agent or any other agent of Affymetrix or agent of the trustee or agent of such warrant agent or unit agent will have any responsibility or liability
for any aspect of the records relating to payments made on account of beneficial ownership interests in the registered global security or for maintaining, supervising or reviewing any records relating to those beneficial ownership interests.
We expect that the depositary for any of the securities represented by a registered global security, upon receipt of any
payment of principal, premium, interest or other distribution of underlying securities or other property to holders of that registered global security, will immediately credit participants’ accounts in amounts proportionate to their respective
beneficial interests in that registered global security as shown on the records of the depositary. We also expect that payments by participants to owners of beneficial interests in a registered global security held through participants will be
governed by standing customer instructions and customary practices, as is now the case with securities held for the accounts of customers in bearer form or registered in “street name,” and will be the responsibility of those participants.
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If the depositary for any of these securities represented by a registered global security is
at any time unwilling or unable to continue as depositary or ceases to be a clearing agency registered under the Exchange Act, and a successor depositary registered as a clearing agency under the Exchange Act is not appointed by us within 90 days,
we will issue securities in definitive form in exchange for the registered global security that had been held by the depositary. Any securities issued in definitive form in exchange for a registered global security will be registered in the name or
names that the depositary gives to the relevant trustee, warrant agent, unit agent or other relevant agent of ours or theirs. It is expected that the depositary’s instructions will be based upon directions received by the depositary from
participants with respect to ownership of beneficial interests in the registered global security that had been held by the depositary. In addition, we will issue securities in definitive form to a holder of a series of debt securities if an event of
default has occurred with respect to such series of debt securities and such holder requests its debt securities be issued in definitive form.
17
PLAN OF DISTRIBUTION
We may sell the securities being offered hereby in the following manner or any manner specified in a prospectus supplement:
|
|
•
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|
directly to purchasers;
|
|
|
•
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|
through underwriters; and
|
The prospectus supplement will set forth the terms of the offering of such securities, including:
|
|
•
|
|
the name or names of any underwriters, dealers or agents and the amounts of securities underwritten or purchased by each of them;
|
|
|
•
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|
the initial public offering price of the securities and the proceeds to us and any discounts, commissions or concessions allowed or reallowed or paid
to dealers; and
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|
|
•
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|
any securities exchanges on which the securities may be listed.
|
We may directly solicit offers to purchase securities, or agents may be designated to solicit such offers. We will, in the prospectus
supplement relating to such offering, name any agent that could be viewed as an underwriter under the Securities Act of 1933, as amended (the “Securities Act”), and describe any commissions that we must pay. Any such agent will be acting
on a best efforts basis for the period of its appointment or, if indicated in the applicable prospectus supplement, on a firm commitment basis. Agents, dealers and underwriters may be customers of, engage in transactions with, or perform services
for us in the ordinary course of business.
If any underwriters or agents are utilized in the sale of the securities in
respect of which this prospectus is delivered, we will enter into an underwriting agreement or other agreement with them at the time of sale to them, and we will set forth in the prospectus supplement relating to such offering the names of the
underwriters or agents and the terms of the related agreement with them.
If a dealer is utilized in the sale of the
securities in respect of which the prospectus is delivered, we will sell such securities to the dealer, as principal. The dealer may then resell such securities to the public at varying prices to be determined by such dealer at the time of resale.
Remarketing firms, agents, underwriters and dealers may be entitled under agreements which they may enter into with us to
indemnification by us against certain civil liabilities, including liabilities under the Securities Act, and may be customers of, engage in transactions with or perform services for us in the ordinary course of business.
In order to facilitate the offering of the securities, any underwriters may engage in transactions that stabilize, maintain or otherwise
affect the price of the securities or any other securities the prices of which may be used to determine payments on such securities. Specifically, any underwriters may overallot in connection with the offering, creating a short position for their
own accounts. In addition, to cover overallotments or to stabilize the price of the securities or of any such other securities, the underwriters may bid for, and purchase, the securities or any such other securities in the open market. Any of these
activities may stabilize or maintain the market price of the securities above independent market levels. Any such underwriters are not required to engage in these activities and may end any of these activities at any time.
Any underwriter, agent or dealer utilized in the initial offering of any securities issued hereunder will not confirm sales to accounts
over which it exercises discretionary authority without the prior specific written approval of its customer.
18
VALIDITY OF SECURITIES
The validity of the securities in respect of which this prospectus is being delivered will be passed on for us by Davis Polk &
Wardwell LLP, Menlo Park, California.
EXPERTS
Ernst & Young LLP, independent registered public accounting firm, has audited our consolidated financial statements and schedule
included in our Annual Report on Form 10-K for the year ended December 31, 2011, and the effectiveness of our internal control over financial reporting as of December 31, 2011, as set forth in their reports, which are incorporated by
reference in this prospectus and elsewhere in the registration statement. Our financial statements and schedule are incorporated by reference in reliance on Ernst & Young LLP’s reports, given on their authority as experts in accounting
and auditing.
Ernst & Young LLP, independent auditors, has audited the consolidated financial statements as of December
31, 2010 and 2011 and for each of the three years in the period ended December 31, 2011 of eBioscience Holding Company, Inc. included in Affymetrix Inc.’s Current Report on Form 8-K dated May 30, 2012 as set forth in their report, which is
incorporated by reference in this prospectus and elsewhere in the registration statement. eBioscience Holding Company, Inc.’s consolidated financial statements as of December 31, 2010 and 2011 and for each of the three years in the
period ended December 31, 2011 are incorporated by reference in reliance on Ernst & Young LLP’s report, given on their authority as experts in accounting and auditing.
19
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
|
Item 14.
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Other Expenses of Issuance and Distribution
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The following table sets forth the costs and expenses payable by the Registrant in connection with the sale of the securities being registered hereby. All amounts are estimates except for the registration
fee.
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Amount to be
Paid
|
|
|
Registration fee
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$
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22,920
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Printing
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*
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|
|
Legal fees and expenses (including Blue Sky fees)
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*
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Trustee fees
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*
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Accounting fees and expenses
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*
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Miscellaneous
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*
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TOTAL
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*
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|
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|
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(*)
|
Estimated fees and expenses are not presently known. The foregoing sets forth the general categories of fees and expenses (other than underwriting discounts and
commissions) that we anticipate we will incur in connection with the offering of securities under this registration statement. An estimate of the aggregate fees and expenses in connection with the issuance and distribution of the securities being
offered will be included in the applicable prospectus supplement.
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|
Item 15.
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Indemnification of Directors and Officers
|
Section 145 of the Delaware General Corporation Law provides that a corporation may indemnify directors and officers as well as other employees and individuals against expenses (including
attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with any threatened, pending or completed actions, suits or proceedings in which such person is made a party by
reason of such person being or having been a director, officer, employee or agent to the Registrant. The Delaware General Corporation Law provides that Section 145 is not exclusive of other rights to which those seeking indemnification may be
entitled under any bylaw, agreement, vote of stockholders or disinterested directors or otherwise. Article 8 of the Registrant’s Bylaws provides for indemnification by the Registrant of its directors, officers and employees to the fullest
extent permitted by the Delaware General Corporation Law.
Section 102(b)(7) of the Delaware General Corporation Law
permits a corporation to provide in its certificate of incorporation that a director of the corporation shall not be personally liable to the corporation or its 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) for
unlawful payments of dividends or unlawful stock repurchases, redemptions or other distributions, or (iv) for any transaction from which the director derived an improper personal benefit. The Registrant’s Certificate of Incorporation
provides for such limitation of liability.
The Registrant maintains standard policies of insurance under which coverage is
provided (a) to its directors and officers against loss rising from claims made by reason of breach of duty or other wrongful act, and (b) to the Registrant with respect to payments which may be made by the Registrant to such officers and
directors pursuant to the above indemnification provision or otherwise as a matter of law.
II-1
The underwriting agreement filed as Exhibit 1.1 to this Registration Statement may provide
for indemnification of directors, officers and controlling persons of the Registrant by the underwriters against certain liabilities, including liabilities under the Securities Act.
|
Item 16.
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Exhibits and Financial Statement Schedules
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(a) The following exhibits are filed as part of this Registration Statement:
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Exhibit No.
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Document
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1.1(1)
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Form of Underwriting Agreement
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2.1(2)
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Amended and Restated Agreement and Plan of Merger by and among eBioscience Holding Company, Inc., the Company, Excalibur Acquisition Sub, Inc. and the Securityholders’
Representative dated as of May 3, 2012
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|
|
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3.1(3)
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Restated Certificate of Incorporation
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3.2(4)
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Amended and Restated Bylaws
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4.1(5)
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Specimen Common Stock Certificate
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|
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4.2(1)
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Specimen Preferred Stock Certificate
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4.3
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Form of Senior Indenture
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4.4
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Form of Subordinated Indenture
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4.5
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Form of Senior Debt Security (included in Exhibit 4.3)
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4.6
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Form of Subordinated Debt Security (included in Exhibit 4.4)
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4.7(1)
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Form of Warrant Agreement
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4.8(1)
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Form of Purchase Contract
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|
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4.9(1)
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Form of Unit Agreement
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5.1
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Opinion of Davis Polk & Wardwell LLP
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|
|
|
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12.1
|
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Statement regarding computation of Consolidated Ratio of Earnings to Fixed Charges
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|
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23.1
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Consent of Ernst & Young LLP, Independent Registered Public Accounting Firm with respect to Registrant
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|
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23.2
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Consent of Ernst & Young LLP, Independent Auditors with respect to eBioscience Holding Company, Inc.
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23.3
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Consent of Davis Polk & Wardwell LLP (included in Exhibit 5.1)
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24.1
|
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Power of Attorney (included on the signature page of the Registration Statement)
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25.1
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Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939 of The Bank of New York Mellon Trust Company, N.A. as Trustee under the Senior
Indenture
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25.2
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Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939 of The Bank of New York Mellon Trust Company, N.A. as Trustee under the Subordinated
Indenture
|
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(1)
|
To be filed by amendment or on Form 8-K prior to the issuance of the applicable securities.
|
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(2)
|
Incorporated by reference to Registrant’s Current Report on Form 8-K as filed on May 30, 2012.
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(3)
|
Incorporated by reference to Registrant’s Current Report on Form 8-K as filed on June 13, 2000.
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(4)
|
Incorporated by reference to Registrant’s Quarterly Report on Form 10-Q as filed on August 7, 2009.
|
II-2
|
(5)
|
Incorporated by reference to Exhibit 4.1 to Registrant’s Registration Statement on Form S-1 filed on June 3, 1996 (File No. 333-3648).
|
(a) The undersigned Registrant hereby undertakes:
(1) To file,
during any period in which offers or sales are being made of securities registered hereby, 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;
(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. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Securities and Exchange Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective 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 (i), (ii) and (iii) above do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Securities and Exchange
Commission by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in this registration statement, or is contained in a form of prospectus filed pursuant to Rule
424(b) that is part of the registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, 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.
(4) That, for the purpose
of determining liability under the Securities Act of 1933 to any purchaser:
(A) Each prospectus filed by the
registrant pursuant to Rule 424(b)(3)shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
(B) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration
statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act of 1933 shall be deemed to be part of
and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in
Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which
that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the
II-3
registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to
a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document
immediately prior to such effective date.
(5) That, for the purpose of determining liability of the registrant
under the Securities Act of 1933 to any purchaser in the initial distribution of the securities:
The
undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities
are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed
pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering prepared by or on behalf of
the undersigned registrant or used or referred to by the undersigned registrant;
(iii) The portion of any
other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and
(iv) Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
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(b)
|
The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s
annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange
Act of 1934) that is incorporated by reference in the 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)
|
The undersigned registrant hereby undertakes to supplement the prospectus, after the expiration of the subscription period, to set forth the results of the subscription
offer, the transactions by the underwriters during the subscription period, the amount of unsubscribed securities to be purchased by the underwriters, and the terms of any subsequent reoffering thereof. If any public offering by the underwriters is
to be made on terms differing from those set forth on the cover page of the prospectus, a post-effective amendment will be filed to set forth the terms of such offering.
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|
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(d)
|
Insofar as indemnification for liabilities arising under the Securities Act of 1933 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 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 Act and will be governed by the final adjudication of such issue.
|
II-4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 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 May 30, 2012.
|
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AFFYMETRIX, INC.
|
|
|
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|
By:
|
|
/
S
/ F
RANK
W
ITNEY
|
|
|
|
Frank Witney
President and
Chief Executive Officer
|
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and
appoints Frank Witney, Timothy C. Barabe and John F. Runkel, Jr., and each of them, his or her true and lawful attorneys-in-fact and agents, with full power to act separately and full power of substitution and resubstitution, for him or her and in
his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement and all additional registration statements pursuant to Rule 462(b) of the Securities Act
of 1933 and to file the same, with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto each said attorney-in-fact and agent full power and authority to do and perform each
and every act in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or either of them or their or his or her substitute or substitutes may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following
persons in the capacities and on the dates indicated.
|
|
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
/
S
/ F
RANK
W
ITNEY
Frank Witney
|
|
President, Chief Executive Officer and
Director
(Principal Executive Officer)
|
|
May 30, 2012
|
|
|
|
|
|
/
S
/ T
IMOTHY
C. B
ARABE
Timothy C. Barabe
|
|
Executive Vice President and Chief Financial Officer
(Principal Financial and Accounting
Officer)
|
|
May 30, 2012
|
|
|
|
|
|
/
S
/ S
TEPHEN
P.A. F
ODOR
,
P
H
.D.
Stephen P.A. Fodor, Ph.D.
|
|
Chairman of the Board
|
|
May 30, 2012
|
|
|
|
|
|
/
S
/ N
ELSON
C. C
HAN
Nelson C. Chan
|
|
Director
|
|
May 30, 2012
|
|
|
|
|
|
/
S
/ J
OHN
D. D
IEKMAN
,
P
H
.D.
John D. Diekman, Ph.D.
|
|
Director
|
|
May 30, 2012
|
|
|
|
|
|
/
S
/ G
ARY
S. G
UTHART
,
P
H
.D.
Gary S. Guthart, Ph.D.
|
|
Director
|
|
May 30, 2012
|
|
|
|
|
|
/
S
/ J
AMI
D
OVER
N
ACHTSHEIM
Jami Dover Nachtsheim
|
|
Director
|
|
May 30, 2012
|
|
|
|
|
|
/
S
/ R
OBERT
H. T
RICE
,
P
H
.D.
Robert H. Trice, Ph.D.
|
|
Director
|
|
May 30, 2012
|
|
|
|
|
|
/
S
/ R
OBERT
P. W
AYMAN
Robert P. Wayman
|
|
Director
|
|
May 30, 2012
|
II-5
EXHIBIT INDEX
|
|
|
|
|
Exhibit No.
|
|
Document
|
|
|
|
|
1.1(1)
|
|
Form of Underwriting Agreement
|
|
|
|
|
2.1(2)
|
|
Amended and Restated Agreement and Plan of Merger by and among eBioscience Holding Company, Inc., the Company, Excalibur Acquisition Sub, Inc. and the Securityholders’
Representative dated as of May 3, 2012
|
|
|
|
|
3.1(3)
|
|
Restated Certificate of Incorporation
|
|
|
|
|
3.2(4)
|
|
Amended and Restated Bylaws
|
|
|
|
|
4.1(5)
|
|
Specimen Common Stock Certificate
|
|
|
|
|
4.2(1)
|
|
Specimen Preferred Stock Certificate
|
|
|
|
|
4.3
|
|
Form of Senior Indenture
|
|
|
|
|
4.4
|
|
Form of Subordinated Indenture
|
|
|
|
|
4.5
|
|
Form of Senior Debt Security (included in Exhibit 4.3)
|
|
|
|
|
4.6
|
|
Form of Subordinated Debt Security (included in Exhibit 4.4)
|
|
|
|
|
4.7(1)
|
|
Form of Warrant Agreement
|
|
|
|
|
4.8(1)
|
|
Form of Purchase Contract
|
|
|
|
|
4.9(1)
|
|
Form of Unit Agreement
|
|
|
|
|
5.1
|
|
Opinion of Davis Polk & Wardwell LLP
|
|
|
|
|
12.1
|
|
Statement regarding computation of Consolidated Ratio of Earnings to Fixed Charges
|
|
|
|
|
23.1
|
|
Consent of Ernst & Young LLP, Independent Registered Public Accounting Firm with respect to Registrant
|
|
|
|
|
23.2
|
|
Consent of Ernst & Young LLP, Independent Auditors with respect to eBioscience Holding Company, Inc.
|
|
|
|
|
23.3
|
|
Consent of Davis Polk & Wardwell LLP (included in Exhibit 5.1)
|
|
|
|
|
24.1
|
|
Power of Attorney (included on the signature page of the Registration Statement)
|
|
|
|
|
25.1
|
|
Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939 of The Bank of New York Mellon Trust Company, N.A. as Trustee under the Senior Indenture
|
|
|
|
|
25.2
|
|
Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939 of The Bank of New York Mellon Trust Company, N.A. as Trustee under the Subordinated
Indenture
|
|
(1)
|
To be filed by amendment or on Form 8-K prior to the issuance of the applicable securities.
|
|
(2)
|
Incorporated by reference to Registrant’s Current Report on Form 8-K as filed on May 30, 2012.
|
|
(3)
|
Incorporated by reference to Registrant’s Current Report on Form 8-K as filed on June 13, 2000.
|
|
(4)
|
Incorporated by reference to Registrant’s Quarterly Report on Form 10-Q as filed on August 7, 2009.
|
|
(5)
|
Incorporated by reference to Exhibit 4.1 to Registrant’s Registration Statement on Form S-1 filed on June 3, 1996 (File No. 333-3648).
|
II-6
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