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EXHIBIT 5.1
AFFYMETRIX LETTERHEAD
October 14, 1999
Affymetrix, Inc.
0000 Xxxxxxx Xxxxxxxxxx
Xxxxx Xxxxx, Xxxxxxxxxx 00000
Dear Ladies and Gentlemen:
In connection with the registration under the Securities Act of 1933,
as amended, of 1,070,000 shares of Common Stock, par value $.01 per share (the
"Shares"), of Affymetrix, Inc., a Delaware corporation, and the related
preferred stock purchase rights (the "Rights") issued pursuant to the Rights
Agreement, dated as of October 15, 1998 (the "Rights Agreement"), between
Affymetrix and American Stock Transfer & Trust Company, as Rights Agent (the
"Rights Agent"), I, as your general counsel, have examined such corporate
records, certificates and other documents, and such questions of law, as I have
considered necessary or appropriate for the purposes of this opinion. Upon the
basis of such examination, I advise you that, in my opinion:
(1) The Shares have been duly authorized and, upon compliance
with the exchange procedures set forth in Article V of the Merger
Agreement, dated as of September 10, 1999 (the "Merger Agreement"),
among Affymetrix, Inc., Genetic MicroSystems, Inc., GMS Acquisition,
Inc., Xxxx Xxxxxxx and the stockholders of Genetic MicroSystems set
forth on the signature pages to the Merger Agreement (the "Exchange
Procedures"), the Shares will be validly issued, fully paid and
nonassessable.
(2) The issuance of the Rights has been duly authorized by
Affymetrix.
(3) Assuming that the board of directors of Affymetrix, after
fully informing itself as to matters relating to the Rights Agreement
and the Rights and after giving due consideration to all relevant
matters, determined that the execution and delivery of the Rights
Agreement and the issuance of Rights thereunder would be in the best
interests of Affymetrix and its stockholders, and assuming further that
the Rights Agreement has been duly authorized, executed and delivered
by the Rights Agent, then upon compliance with the Exchange Procedures,
the Rights will be validly issued.
In connection with my opinion set forth in paragraph (2)
above, I note that the question whether the board of directors of Affymetrix
might be required to redeem the Rights at some future time will depend upon
facts and circumstances existing at that time and, accordingly, is beyond the
scope of such opinion.
The foregoing opinion is limited to the federal laws of the
United States and the General Corporation Law of the State of Delaware, and I am
expressing no opinion as to the effect of the laws of any other jurisdiction. I
am not a member of the Bar of the State of Delaware, and I have relied on the
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advice of Xxxxxxxx & Xxxxxxxx with respect to interpretations of the General
Corporation Law of the State of Delaware.
I have relied as to certain matters on information obtained
from public officials, officers of Affymetrix and other sources believed by me
to be responsible.
I hereby consent to the filing of this opinion as an exhibit
to the Registration Statement relating to the Shares and the Rights and to the
reference to me under the heading "Validity of Shares" in the Proxy
Statement/Prospectus relating to the Shares and the Rights. In giving such
consent, I do not thereby admit that I am in the category of persons whose
consent is required under Section 7 of the Act.
Very truly yours,
/s/ Xxxx Xxxxxxx, Esq.
Senior Vice President,
General Counsel and Corporate Secretary
Affymetrix, Inc.
