Exhibit 10.32
AFFYMETRIX, INC.
A Delaware corporation
Change of Control
Plan
(As Amended Through November 5,
2008)
This Change of Control Plan (the
“ Plan ”) sets forth (i) the terms
applicable to equity awards of Affymetrix, Inc. (together with
any successor to substantially all of its business, stock or
assets, the “ Company ”) in the event of a
transaction resulting in a Change of Control (as defined below) and
(ii) the receipt of severance benefits for Covered Persons of
the Company in the event of a transaction resulting in a Change of
Control.
1.
Treatment of Equity
Awards . Upon the
occurrence of a Change of Control, or the execution by the Company
of any agreement with respect to a Change of Control, the Board
shall take any one or more of the following actions with respect to
outstanding compensatory stock options, restricted stock,
restricted stock units or other equity awards (collectively,
“ Equity Awards ”) held by any Covered Person at
such time:
(a)
provide that outstanding Equity
Awards shall be continued by the Company if the Company is the
surviving entity or shall be assumed, or equivalent Equity Awards
shall be substituted, by the acquiring or succeeding corporation
(or an affiliate thereof);
(b)
upon written notice to the holders
of Equity Awards, provide that all Equity Awards will become vested
and, if applicable, exercisable in full as of a specified time (the
“ Acceleration Time ”) prior to the Change of
Control and will terminate immediately prior to the consummation of
such Change of Control;
(c)
in the event of a transaction
resulting in a Change of Control, under the terms of which holders
of Common Stock, par value $0.01 per share, of the Company (the
“ Common Stock ”) will receive upon consummation
thereof a cash payment for each share of Common Stock surrendered
pursuant to such Change of Control (the “ Acquisition
Price ”), provide that all outstanding Equity Awards
shall terminate upon consummation of such Change of Control and
each holder of such Equity Awards shall receive, in exchange
therefor, a cash payment equal to the amount (if any) by which the
Acquisition Price multiplied by the number of shares of Common
Stock subject to such outstanding Equity Awards (whether or not
then vested), exceeds the aggregate exercise price or purchase
price, if any, of such Equity Awards.
2 .
Treatment of Equity Awards Upon
Triggering Event . With
respect to any Equity Awards remaining outstanding following a
Change of Control, upon a Triggering Event, a Covered
Person’s Equity Awards shall become fully vested subject to
compliance with Section 3 below. Notwithstanding the
foregoing, to the extent that any applicable laws or regulations of
the applicable jurisdiction in which the Covered Person is employed
requires certain treatment with respect to Equity Awards upon a
Triggering Event, the Covered Person shall be entitled to the
more
beneficial treatment provided by
either (i) the applicable laws or regulations of the
applicable jurisdiction or (ii) this Plan, but not both. To
the extent any Equity Awards are to be settled in cash pursuant to
Section 1 or this Section 2, such Equity Awards shall be
settled as promptly as practicable but no later than two and
one-half months (2-1/2) months after the end of the taxable year of
the Covered Person in which such Equity Awards become
vested.
3.
Enhanced Severance
. (a) Upon a Triggering Event
following a Change of Control, the following Covered Persons shall
receive a severance payment equal to the following amount of their
base salary:
|
COVERED PERSON
POSITION
|
|
SEVERANCE PERIOD
|
|
Executive Chairman, EVP, CEO,
President
|
|
24 months
|
|
Senior VP
|
|
15 months
|
|
VP
|
|
12 months
|
|
Director
|
|
9 months
|
|
Level 5 or Above
|
|
6 months
|
|
Level 4 or Below
|
|
3 months
|
(b)
All severance benefits under this
Plan shall be conditioned on the Covered Person signing and letting
become effective a general release of claims (the “
Release ”) in a form acceptable to the Company. The
Covered Person shall sign such Release within 45 days following
termination. All severance payments under this Plan shall be made
in a lump-sum within 10 days after the later of the termination
date and the date on which the Release becomes effective, and, in
any event, no later than two and one-half (2-1/2) months after the
end of the taxable year of the Covered Person in which the
termination date occurs. All amounts paid under this Plan shall be
reduced by any applicable taxes or any other amounts required to be
paid or withheld by the Company.
(c)
In the event of termination of a
Covered Person with a housing loan, such Covered Person will have
one year to settle the loan with the Company. During such year, the
Covered Person will continue to make interest payments to the
Company.
(d)
The Company will continue to provide
health benefits (which may be through COBRA premium reimbursement
or subsidizing) to each Covered Person at the same cost to such
Covered Person as prior to the Change of Control for the period of
time set forth in Section 3(a) under “Severance
Period” or, if earlier, until such Covered Person becomes
eligible for group health benefits from another
employer.
(e)
The Company will provide each
Covered Person outplacement services following termination of
employment for a period of six months for Executive Officers, Vice
Presidents and Directors and two months for all other Covered
Persons.
(f)
Notwithstanding the foregoing, to
the extent that any applicable laws or regulations of the
applicable jurisdiction in which the Covered Person is employed
requires certain treatment with respect to Enhanced Severance
provisions set forth in this Section 3, the Covered Person
shall be entitled to the more beneficial treatment provided by
either (i) the applicable laws or regulations of the
applicable jurisdiction or (ii) this Plan, but not
both.
