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Actionable news in AFFX: Affymetrix, Inc.,

Affymetrix: Form, Schedule Or Registration Statement No Filing Party: Date Filed: AFFYMETRIX, INC.

The following excerpt is from the company's SEC filing.

3420 Central Expressway

Santa Clara, California 95051

SUPPLEMENT TO PROXY STATEMENT

FOR THE SPECIAL MEETING OF STOCKHOLDERS

TO BE HELD MARCH 24, 2016

This is a supplement to the proxy statement dated February 24, 2016 (the proxy statement) of Affymetrix, Inc. (Affymetrix, we, our or the Company) that was mailed to you in connection with the solicitation of proxies for use at the special meeting of stockholders to be held at the offices of Affymetrix, 3380 Central Expressway, Santa Clara, California 95051, on March 24, 2016 at 9:00 a.m., local time. The purpose of th e special meeting is (1) to consider and vote on a proposal to adopt and approve the Agreement and Plan of Merger, dated as of January 8, 2016, among Affymetrix, Thermo Fisher Scientific Inc. (Thermo Fisher), and White Birch Merger Co., a wholly owned subsidiary of Thermo Fisher (merger sub), as it may be amended from time to time (the merger agreement), pursuant to which merger sub will be merged with and into Affymetrix, with Affymetrix surviving the merger as a wholly owned subsidiary of Thermo Fisher (the merger); (2) to approve the adjournment or postponement of the special meeting, if necessary or appropriate, to solicit additional proxies in the event that there are not sufficient votes at the time of the special meeting to adopt and approve the merger agreement; and (3) to consider and vote on a proposal, on an advisory (non-binding) basis, to approve the compensation that may be paid or become payable to Affymetrix named executive officers in connection with the merger, and the agreements and understandings pursuant to which such compensation may be paid or become payable, as described in the section entitled The MergerInterests of the Companys Directors and Executive Officers in the MergerCompensation Proposal of the proxy statement. The Affymetrix Board of Directors (the Board) previously established February 18, 2016 as the record date for the purpose of determining the stockholders who are entitled to receive notice of, and to vote at (in person or by proxy), the special meeting.

The Board approved and adopted the merger agreement, the merger and the other transactions contemplated by the merger agreement and unanimously declared that the merger agreement, the merger and the other transactions contemplated by the merger agreement are advisable, fair to and in the best interests of the stockholders of Affymetrix.

THE BOARD UNANIMOUSLY RECOMMENDS THAT YOU VOTE FOR THE ADOPTION AND APPROVAL OF THE MERGER AGREEMENT, FOR THE PROPOSAL TO ADJOURN OR POSTPONE THE SPECIAL MEETING, IF NECESSARY OR APPROPRIATE, TO SOLICIT ADDITIONAL PROXIES AND FOR THE NON-BINDING ADVISORY PROPOSAL TO APPROVE COMPENSATION THAT MAY BE PAID OR BECOME PAYABLE TO OUR NAMED EXECUTIVE OFFICERS IN CONNECTION WITH THE MERGER. IF YOU HAVE NOT ALREADY SUBMITTED A PROXY FOR USE AT THE SPECIAL MEETING YOU ARE URGED TO DO SO PROMPTLY. NO ACTION IN CONNECTION WITH THIS SUPPLEMENT TO THE PROXY STATEMENT IS REQUIRED BY ANY STOCKHOLDER WHO HAS PREVIOUSLY DELIVERED A PROXY AND WHO DOES NOT WISH TO REVOKE OR CHANGE THAT PROXY. INFORMATION ABOUT VOTING OR REVOKING A PROXY APPEARS ON PAGES 15-16 OF THE PROXY STATEMENT.

Litigation Relating to the Merger

Between January 19, 2016 and January 27, 2016, four substantially similar putative shareholder class action suits were filed by individual stockholders in the Superior Court of California in Santa Clara County against our directors. The complaints also name Thermo Fisher and merger sub as defendants. The cases are captioned

Steven Merola v. Affymetrix Inc., et al.

, Case No. 16CV290267,

Betty Greenberg v. Frank Witney, et al.

, Case No. 16CV290336,

Jeffrey S. L. Cheah v. Affymetrix, Inc., et al.,

Case No. 16CV290794

Robert Cox v. Affymetrix, Inc., et al.

, Case No. 16CV290866 (The

Merola, Cheah

cases also name Affymetrix itself as a defendant). The complaints allege that our directors breached their fiduciary duties by failing to maximize stockholder value in negotiating and approving the merger agreement. The complaints also generally allege that the additional defendants named in each suit aided and abetted these alleged breaches of fiduciary duties. In addition, in the

case, an amended complaint was filed on February 18, 2016 that also alleges conflicts of interest in the deal process and that

the preliminary proxy statement contains material misrepresentations and omissions. An amended complaint was served in the

case on February 29, 2016 that also alleges that the preliminary proxy statement contains material misrepresentations and omissions.

On February 24, 2016 a putative shareholder class action suit was filed by an individual stockholder in the United States District Court in the Northern District of California. The case is captioned

Gerald Douglas v. Frank Witney, et al.

, Case No. 3:16-CV-00921. The complaint alleges breaches of fiduciary duty and violations of federal securities law. On March 14, 2016, similar putative shareholder class action suits were filed by other individual stockholders in the United States District Court in the Northern District of California. Those cases are captioned

Steven Merola v. Frank Witney, et al.

, No. 5:16-cv-01237, and

, No. 5:16-cv-01253. (The plaintiffs in the

cases had previously filed cases in the Superior Court of California in Santa Clara County.) The complaints seek, among other forms of relief, class certification and injunctive relief blocking consummation of the merger.

On March 15, 2016, counsel for the parties in the

lawsuits entered into a memorandum of understanding in which they agreed on the terms of a settlement of those lawsuits, which would include the dismissal with prejudice of all claims against all of the defendants. The proposed settlement is conditional upon, among other things, the execution of an appropriate stipulation of settlement, consummation of the merger and final approval of the proposed settlement by the court. In addition, in connection with the settlement and as provided in the memorandum of understanding, the parties contemplate that plaintiffs counsel will seek an award of attorneys fees and expenses as part of the settlement. There can be no assurance that the parties will ultimately enter into a stipulation of settlement or that the court will approve the settlement even if the parties were to enter into such stipulation. In such event, the proposed settlement as contemplated by the memorandum of understanding may be terminated. The settlement will not affect the amount of the merger consideration that Affymetrix stockholders are entitled to receive in the merger.

The defendants deny all liability with respect to the facts and claims alleged in the lawsuits and specifically deny that any further supplemental disclosure was required under any applicable rule, statute, regulation or law. However, to avoid the risk of delaying or adversely affecting the merger and the related transactions, to minimize the expense of defending the lawsuits, and to provide additional information to our stockholders at a time and in a manner that would not cause any delay of the special meeting or the merger, the defendants have agreed to the terms of the proposed settlement described above. We further considered it desirable that the actions be settled to avoid the expense, risk, inconvenience and distraction of continued litigation and to fully and finally resolve the...


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