{"id":38629,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/change-of-control-plan-affymetrix-inc.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"change-of-control-plan-affymetrix-inc","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/change-of-control-plan-affymetrix-inc.html","title":{"rendered":"Change of Control Plan – Affymetrix Inc."},"content":{"rendered":"

AFFYMETRIX, INC.<\/p>\n

A Delaware corporation<\/p>\n

Change of Control Plan<\/p>\n

(As Amended Through May 14, 2010)<\/p>\n

This Change of Control Plan (the “Plan”) sets forth (i) the terms applicable
\nto equity awards of Affymetrix, Inc. (together with any successor to
\nsubstantially all of its business, stock or assets, the “Company”) in the event
\nof a transaction resulting in a Change of Control (as defined below) and (ii)
\nthe receipt of severance benefits for Covered Persons of the Company in the
\nevent of a transaction resulting in a Change of Control.<\/p>\n

1. Treatment of Equity Awards. Upon the occurrence of a Change of Control, or
\nthe execution by the Company of any agreement with respect to a Change of
\nControl, the Board shall take any one or more of the following actions with
\nrespect to outstanding compensatory stock options, restricted stock, restricted
\nstock units or other equity awards (collectively, “Equity Awards”) held by any
\nCovered Person at such time:<\/p>\n

(a) provide that outstanding Equity Awards shall be continued by the Company
\nif the Company is the surviving entity or shall be assumed, or equivalent Equity
\nAwards shall be substituted, by the acquiring or succeeding corporation (or an
\naffiliate thereof);<\/p>\n

(b) upon written notice to the holders of Equity Awards, provide that all
\nEquity Awards will become vested and, if applicable, exercisable in full as of a
\nspecified time (the “Acceleration Time”) prior to the Change of Control and will
\nterminate immediately prior to the consummation of such Change of Control; or\n<\/p>\n

(c) in the event of a transaction resulting in a Change of Control, under the
\nterms of which holders of Common Stock, par value $0.01 per share, of the
\nCompany (the “Common Stock”) will receive upon consummation thereof a cash
\npayment for each share of Common Stock surrendered pursuant to such Change of
\nControl (the “Acquisition Price”), provide that all outstanding Equity Awards
\nshall terminate upon consummation of such Change of Control and each holder of
\nsuch Equity Awards shall receive, in exchange therefor, a cash payment equal to
\nthe amount (if any) by which the Acquisition Price multiplied by the number of
\nshares of Common Stock subject to such outstanding Equity Awards (whether or not
\nthen vested), exceeds the aggregate exercise price or purchase price, if any, of
\nsuch Equity Awards.<\/p>\n

Any Equity Awards held by a Non-Employee Director shall become fully vested
\nimmediately prior to a Change of Control.<\/p>\n<\/p>\n<\/p>\n

<\/p>\n

2. Treatment of Equity Awards Upon Triggering Event. With respect to any
\nEquity Awards remaining outstanding following a Change of Control, upon a
\nTriggering Event, a Covered Person’s Equity Awards shall become fully vested
\nsubject to compliance with Section 3 below. Notwithstanding the foregoing, to
\nthe extent that any applicable laws or regulations of the applicable
\njurisdiction in which the Covered Person is employed requires certain treatment
\nwith respect to Equity Awards upon a Triggering Event, the Covered Person shall
\nbe entitled to the more beneficial treatment provided by either (i) the
\napplicable laws or regulations of the applicable jurisdiction or (ii) this Plan,
\nbut not both. To the extent any Equity Awards are to be settled in cash pursuant
\nto Section 1 or this Section 2, such Equity Awards shall be settled as promptly
\nas practicable but no later than two and one-half months (2-1\/2) months after
\nthe end of the taxable year of the Covered Person in which such Equity Awards
\nbecome vested.<\/p>\n

3. Enhanced Severance.<\/p>\n

(a) Upon a Triggering Event following a Change of Control, the following
\nCovered Persons shall receive a severance payment equal to the following
\namounts:<\/p>\n\n\n\n\n\n\n\n\n\n
\n

Covered Person Position<\/p>\n<\/td>\n

\n

Severance Payment<\/p>\n<\/td>\n<\/tr>\n

\n

Level 13 or above employees who are the Executive Chairman, an EVP, CEO or
\nPresident<\/p>\n<\/td>\n

\n

24 months of base salary plus 200% of target bonus<\/p>\n<\/td>\n<\/tr>\n

\n

Level 13 or above employees who are SVPs<\/p>\n<\/td>\n

\n

15 months of base salary plus 140% of target bonus<\/p>\n<\/td>\n<\/tr>\n

\n

Level 12 employees who are VPs<\/p>\n<\/td>\n

\n

12 months of base salary plus 100% of target bonus<\/p>\n<\/td>\n<\/tr>\n

\n

Level 10 to 11 employees who are Directors or Senior Directors<\/p>\n<\/td>\n

\n

9 months of base salary plus 75% of target bonus<\/p>\n<\/td>\n<\/tr>\n

\n

Level 5 to level 9 employees<\/p>\n<\/td>\n

\n

6 months of base salary plus 50% of target bonus, if
\napplicable<\/p>\n<\/td>\n<\/tr>\n

\n

Level 4 or below employees<\/p>\n<\/td>\n

\n

3 months of base salary plus 25% of target bonus, if
\napplicable<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

(b) All severance benefits under this Plan shall be conditioned on the
\nCovered Person signing and letting become effective a general release of claims
\n(the “Release”) in a form acceptable to the Company. The Covered Person shall
\nsign such Release within 45 days following termination. All severance payments
\nunder this Plan shall be made in a lump-sum within 10 days after the later of
\nthe termination date and the date on which the Release becomes effective, and,
\nin any event, no later than two and one-half (2-1\/2) months after the end of the
\ntaxable year of the Covered Person in which the termination date occurs. All
\namounts paid under this Plan shall be reduced by any applicable taxes or any
\nother amounts required to be paid or withheld by the Company.<\/p>\n<\/p>\n<\/p>\n

<\/p>\n

(c) In the event of termination of a Covered Person with a housing loan, such
\nCovered Person will have one year to settle the loan with the Company. During
\nsuch year, the Covered Person will continue to make interest payments to the
\nCompany.<\/p>\n

(d) The Company will continue to provide health benefits (which may be
\nthrough COBRA premium reimbursement or subsidizing) to each Covered Person at
\nthe same cost to such Covered Person as prior to the Change of Control for the
\nperiod of time set forth in Section 3(a) under “Severance Period” or, if
\nearlier, until such Covered Person becomes eligible for group health benefits
\nfrom another employer.<\/p>\n

(e) The Company will provide each Covered Person outplacement services
\nfollowing termination of employment for a period of six months for Executive
\nOfficers, Vice Presidents and Directors and two months for all other Covered
\nPersons.<\/p>\n

(f) Notwithstanding the foregoing, to the extent that any applicable laws or
\nregulations of the applicable jurisdiction in which the Covered Person is
\nemployed requires certain treatment with respect to Enhanced Severance
\nprovisions set forth in this Section 3, the Covered Person shall be entitled to
\nthe more beneficial treatment provided by either (i) the applicable laws or
\nregulations of the applicable jurisdiction or (ii) this Plan, but not both.<\/p>\n

4. Definitions. For purposes of this Plan, the following terms shall have the
\nfollowing meanings:<\/p>\n

(a) “Cause” shall mean any of the following by a Covered Person:<\/p>\n

(i) willful and continued failure to substantially perform his or her duties
\nto the Company (other than as a result of total or partial incapacity due to
\nphysical or mental illness);<\/p>\n

(ii) any willful act or omission constituting dishonesty, fraud or other
\nmalfeasance against the Company;<\/p>\n

(iii) conviction of a felony under the laws of the United States or any state
\nthereof or any other jurisdiction in which the Company conducts business; or\n<\/p>\n

(iv) breach of any of the material policies of the Company including being
\nunder the influence of illicit drugs or alcohol at work or on the Company’s
\npremises.<\/p>\n<\/p>\n<\/p>\n

<\/p>\n

(b) “Change of Control” shall mean:<\/p>\n

(i) any merger or consolidation which results in the voting securities of the
\nCompany outstanding immediately prior thereto representing immediately
\nthereafter (either by remaining outstanding or by being converted into voting
\nsecurities of the surviving or acquiring entity) no more than 50% of the
\ncombined voting power of the voting securities of the Company or such surviving
\nor acquiring entity outstanding immediately after such merger or consolidation;\n<\/p>\n

(ii) during any period of 12 consecutive calendar months, the individuals who
\nat the beginning of such period constitute the Company’s Board of Directors (the
\n“Board”), and any new directors whose election by such Board or nomination for
\nelection by stockholders was approved or recommended by a vote of at least a
\nmajority of the members of such Board who were either directors on such Board at
\nthe beginning of the period or whose election or nomination for election as
\ndirectors was previously so approved or recommended, for any reason cease to
\nconstitute at least a majority of the members thereof;<\/p>\n

(iii) any individual, entity or group (within the meaning of Section 13(d)(3)
\nor 14(d)(2) of the Securities Exchange Act of 1934 as amended (“Exchange
\nAct”))(a “Person”) shall become the beneficial owner (within the meaning of Rule
\n13d-3 promulgated under the Exchange Act) of at least 50% of the total voting
\npower represented by the Company’s then outstanding voting securities; or<\/p>\n

(iv) any sale of all or substantially all of the assets of the Company.<\/p>\n

(c) “Covered Person” or “Covered Persons” shall mean a full-time employee of
\nthe Company or any of its wholly-owned subsidiaries or a member of the Board of
\nDirectors of the Company whois employed by the Company.<\/p>\n

(d) “Non-Employee Director” shall mean a member of the Board of Directors of
\nthe Company immediately prior to a Change of Control who is not also an employee
\nof the Company.<\/p>\n<\/p>\n<\/p>\n

<\/p>\n

(e) “Triggering Event” shall mean:<\/p>\n

(i) a Covered Person’s employment is terminated by the Company (or any
\nsuccessor or acquiror) without Cause in connection with, or within twelve (12)
\nmonths following, a Change of Control; provided, however, if an employee is
\nterminated by the Company in connection with a Change of Control but immediately
\naccepts employment with the Company’s successor or acquiror, such employee will
\nnot be deemed to be covered by this subsection (i), but if such employee is
\nterminated without Cause by the successor or acquiror within the twelve (12)
\nmonths following the Change of Control, this subsection (i) will apply;<\/p>\n

(ii) the Covered Person, in connection with a Change of Control, is not
\noffered Comparable Employment. For purposes of the foregoing, “Comparable
\nEmployment” shall mean, (a) in the case of a Covered Person at the director
\nlevel or above, (i) employment on terms which provide the same or greater rate
\nof base pay or salary as in effect immediately prior to a Change of Control,
\n(ii) no material reduction in job duties and responsibilities as such Covered
\nPerson had prior to a Change of Control and (iii) equivalent or higher target
\nbonus opportunity to the target bonus opportunity of the Covered Person in
\neffect immediately prior to the Change of Control, and (b) in the case of all
\nCovered Persons, a principal work location that is no more than forty-five (45)
\nmiles from the Covered Person’s principal work location immediately prior to the
\nChange of Control; provided, however, if such Covered Person accepts employment
\nthat is not Comparable Employment, such employee shall not be covered by this
\nsubsection (ii);<\/p>\n

(iii) after accepting employment with the Company (or any successor or
\nacquiror) after a Change of Control, the Covered Person resigns employment
\nwithin six (6) months following a Change of Control due to a Material Change in
\nthe Covered Person’s Terms of Employment. For purposes of the foregoing, a
\n“Material Change in the Covered Person’s Terms of Employment” shall occur if,
\nwithout the Covered Person’s written consent: (a) in the case of a Covered
\nPerson at the director level or above, (i) the Covered Person’s base salary or
\njob duties and responsibilities are materially reduced from those in effect
\nimmediately prior to a Change of Control or (ii) the Covered Person is subject
\nto a substantial reduction in target bonus opportunity from the target bonus
\nopportunity of that Covered Person in effect immediately prior to the Change of
\nControl, or (b) in the case of a Covered Person at Level 6 or above, such
\nCovered Person’s principal work location is to be moved more than forty-five
\n(45) miles from the Covered Person’s principal work location immediately prior
\nto a Change of Control.<\/p>\n<\/p>\n<\/p>\n

<\/p>\n

5. Section 409A. Notwithstanding anything to the contrary in this Plan, if a
\nCovered Person is a “specified employee” within the meaning of Section 409A of
\nthe Internal Revenue Code, as amended (“Section 409A”) and the regulations
\nthereunder, as determined under the Company’s established methodology for
\ndetermining specified employees, as of the date of such Covered Person’s
\n“separation from service” as defined in Treasury Regulation Section 1.409A-1(h)
\n(or any successor regulation), and if any payments or entitlements provided for
\nin this Plan constitute a “deferral of compensation” within the meaning of
\nSection 409A and cannot be paid or provided in the manner provided herein
\nwithout subjecting such Covered Person to additional tax, interest or penalties
\nunder Section 409A, then any such payment and\/or entitlement which is payable
\nduring the first six months following such Covered Person’s “separation from
\nservice” shall be paid or provided to such Covered Person in a lump sum on the
\nfirst business day immediately following the first to occur of (i) the six-month
\nanniversary of such Covered Person’s “separation from service” and (ii) the date
\nof such Covered Person’s death. For the avoidance of doubt, any reference to
\ntermination of employment in this Plan shal mean “separation from service” as
\ndefined in Treasury Regulation Section 1.409A-1(h) (or any successor
\nregulation).<\/p>\n

6. Amendment of Plan. The Board shall have the power to amend this Plan from
\ntime to time in its discretion prior to the occurrence of a Change of Control.
\nFollowing a Change of Control, this Plan may not be terminated or amended in a
\nmanner adversely to any Covered Person for 12 months following a Change of
\nControl. The termination or amendment of the Plan at any time shall not affect
\nany benefits to which a Covered Person has previously become entitled hereunder.
\nTo the extent required by applicable law, if and when this Plan becomes
\noperative in connection with a Change of Control, the Company shall make any
\nrevisions and filings necessary to the extent the Plan is determined to be a
\n“severance pay arrangement” within the meaning of Section 3(2)(B)(i) of ERISA.\n<\/p>\n

7. Mediation and Arbitration. The parties agree that any and all disputes,
\nclaims or controversies arising out of or relating to this Plan shall be
\nsubmitted to Judicial Arbitration and Mediation Services (“JAMS”), or its
\nsuccessor, to the extent possible in the location which is the location of a
\nCovered Person’s principal work place, under the auspices and rules of JAMS, for
\nmediation, and if the matter is not resolved through mediation, then it shall be
\nsubmitted to JAMS, or its successor, for final and binding arbitration. The
\nprovisions of this Section may be enforced by any court of competent
\njurisdiction, and the party seeking enforcement shall be entitled to an award of
\nall costs, fees and expenses, including attorneys’ fees, to be paid by the party
\nagainst whom enforcement is ordered.<\/p>\n

8. Superseding Plan. This Plan (i) shall be the only plan with respect to
\nbenefits provided to Covered Persons of the Company upon a transaction that
\nresults in a Change of Control and (ii) shall supersede any other plan with
\nrespect to a transaction resulting in a Change of Control previously adopted by
\nthe Company.<\/p>\n<\/p>\n<\/p>\n

<\/p>\n

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