EXHIBIT 10.26


May 10, 2006


 


Thane Kreiner, Ph.D. 

Affymetrix, Inc. 

3420 Central Expressway 

Santa Clara, CA 95054


 


Dear Dr. Kreiner:


 


This
letter agreement (the “Agreement”)  will set forth our mutual agreement
to change your role with Affymetrix, Inc. (the “Company”), effective as of
April 20, 2006.


 


1.             Position with the
Company.  You will become
Senior Vice President of Marketing and Sales for the Company, with duties and
responsibilities determined by the CEO and reporting to the CEO.


 


2.             Salary, Benefits and
Equity.  While you remain
employed with the Company, you will receive an annual base salary of $335,000,
payable in accordance with the Company’s standard payroll practices. You will
be eligible for an annual bonus of up to 60% of your annual salary and
additional stock awards in accordance with company compensation guidelines,
including specifically 10,000 restricted shares to be given during the 2006
equity awards for other employees. 
During your employment, you will continue to be eligible for employee
benefits under the terms of the Company’s benefit plans, and your equity awards
will continue to vest and remain outstanding in accordance with their terms.


 


3.             Termination
of Employment.


 


(a)           At-Will
Employment.  Your employment
remains at-will, and no special or implied conditions of employment are
established unless they are made in writing.


 


(b)           Termination.  In the event your employment is
terminated by the Company before the 18-month anniversary of the Effective
Date, you will be entitled to receive the following, subject to your signing
and letting become effective a release in the form set forth in Section 4 of
this agreement and continued compliance with the covenants set forth in the
Confidentiality Agreement, and Section 5 of this agreement: (i) an amount equal
to the remaining base salary you would have received had you remained employed
through such 18-month anniversary; (ii) continued Company-paid health coverage
through the end of such 18-month anniversary; and, (iii) vesting of your equity
awards to the extent they would have vested during such 18-month period had you
remained employed.


 


(c)           Return to Former
Position with the Company.    (i) At the end of 18 months as
Senior Vice President for Marketing and Sales, at your option, you can return
to the position you held before the effective date of this agreement with the
same duties, salary, benefits, bonuses and equity awards of that position when
you last held it.  The salary for the
position shall include any raises during the period before you returned to the
position. or (ii) if you leave the Senior Vice President of Marketing and Sales
position before 18 months, you are entitled to return to the











 


position you held before the
effective date of this agreement with the same benefits described in (i) above,
or become an Affymetrix fellow either for 18 months from the effective date of
this agreement or 1 year from the end date of the Senior Vice President of
Marketing and Sales position, whichever is longer with the same salary,
benefits, bonuses and equity awards as the position held before you assumed the
position of Senior Vice President of Marketing and Sales with duties to be
decided by the CEO.


 


4.             Release.   (a)  You
acknowledge that the following release shall extend to unknown, as well as
known claims, and hereby waive the application of any provision of law,
including, without limitation, Section 1542  of the California Civil Code, that
purports to limit the scope of a general release. Section 1542  of
the California Civil Code provides:


 


“A GENERAL RELEASE DOES
NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR
SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF
KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”


 


(b)           You agree to and  do fully and completely release, discharge
and waive any and all claims, complaints, causes of action or demands of
whatever kind which you have or may have against the Company, its subsidiaries,
affiliates, predecessors and successors and all its directors, officers,
employees, stockholders and other investors by reason of any event, matter,
cause or thing which has occurred prior to the date hereof (“Executive Claims”).
You understand and accept that this Agreement specifically covers, but is not
limited to, any and all Executive Claims relating in any way to compensation,
to any previous agreements between you and the Company related to your
employment, or to any other terms, conditions or circumstances of your
employment with the Company, whether for severance or based on statutory or
common law claims for employment discrimination (including discrimination on
the basis of sex, age, religion or disability, including specifically any
claims under the Age Discrimination in Employment Act (the “ADEA”),  Title VII of the Civil Rights Act of 1964, as
amended, or the Americans with Disabilities Act of 1990), wrongful discharge,
breach of contract or any other theory, whether legal or equitable.  Notwithstanding the foregoing, you do not
waive any rights to which you may be entitled to seek indemnification with
respect to liability incurred by you as an officer or director of the Company
in accordance with the Company’s bylaws and the indemnification agreement
between you and the Company.


 


5.             Outside Activities; Non-Solicitation, No
Disparagement.


 


(a)           Outside Activities.  
During your employment with the Company, you will not (i) engage in
any other gainful employment, business or activity without the written consent
of the CEO; (ii) assist any person or organization in competing with the
Company or its affiliates, in preparing to compete with the Company or its
affiliates or in hiring any employees of the Company or its affiliates; (iii)
own, directly or indirectly, any capital stock of any company which is in
competition with any line of business conducted by the Company or its
affiliates; provided that (A) you
may own, directly or directly, up to 1% of the outstanding capital stock of any
publicly traded corporation in a passive investment and (B) you may serve on
other corporate, civic or charitable boards or committees with the consent of
the CEO so long as such service does not prevent you from carrying out your
duties and responsibilities to the Company.


 











 


(b)           Non-Solicitation.  
You acknowledge and recognize the highly competitive nature of the
businesses of the Company and its affiliates and accordingly agree that during
your employment with the Company and for a period of six months after
termination: (i) you will not directly or indirectly induce any employee of the
Company or any of its affiliates to terminate his or her employment with the
Company or any of its affiliates; and (ii) you will not directly or indirectly
solicit customers or suppliers of the Company based on confidential information
of the Company or induce any such person to terminate his, her or its
relationships with the Company.


 


(c)           No Disparagement.  
During and after your employment with the Company, you agree that
you shall not make negative statements or representations, or otherwise
communicate negatively, directly or indirectly, in writing, orally, or
otherwise, or take any action which may, directly or indirectly, disparage or
be damaging to the Company, its subsidiaries, affiliates, successors or their
officers, directors, employees, business or reputation, except as may be
required by law or by any regulatory authority. The Company agrees that neither
it nor its officers and directors shall make any negative statements or
representations, or otherwise communicate negatively, directly or indirectly,
in writing, orally or otherwise, or take any action which may, directly or
indirectly, disparage or be damaging to you or your reputation.


 


6.             Remedies.  (a)  You acknowledge and agree that the Company’s
remedies at law for a breach or threatened breach of any of the provisions of
Section 5  of this Agreement would be inadequate and, in
recognition of this fact, you agree that, in the event of a breach or
threatened breach, in addition to any remedies at law, the Company, without
posting any bond, shall be entitled to obtain equitable relief in the form of
specific performance, temporary restraining order, temporary or permanent
injunction or any other equitable remedy which may then be available.


 


(b)           It is expressly understood and agreed that although you
and the Company consider the restrictions contained in Section 5  to
be reasonable, if a final judicial determination is made by a court of
competent jurisdiction that the time or territory or any other restriction
contained in Section 5  is an unenforceable restriction
against you, the provisions of Section 5  shall not be rendered void but
shall be deemed amended to apply as to such maximum time and territory and to
such other maximum extent as such court may judicially determine or indicate to
be enforceable.


 


7.             Entire
Agreement; Amendment.  Except as expressly set forth herein, and
except for the Confidentiality Agreement, this Agreement shall supersede any
and all existing agreements between you and the Company or any of its
affiliates relating to the terms of your employment and contains the entire
understanding of the parties with respect to your employment.  This Agreement may not be altered, modified
or amended except by a written agreement signed by both parties hereto.


 


8.             No Waiver.  The failure of a party to insist
upon strict adherence to any term of this Agreement on any occasion shall not
be considered a waiver of such party’s rights or deprive such party of the
right thereafter to insist upon strict adherence to that term or any other term
of this Agreement.


 











 


9.             Severability.  In the event that any one or more of the
provisions of this Agreement shall be or become invalid, illegal or
unenforceable in any respect, the validity, legality or enforceability of the
remaining provisions of this Agreement shall not be affected thereby.


 


10.           Assignment.  This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective heirs,
representatives, successors and assigns. This Agreement shall not be assignable
by you and shall be assignable by the Company only to an affiliate or successor
thereof.


 


11.           Acknowledgement.  You acknowledge that you have
carefully read this Agreement, fully understand and accept all of its
provisions and sign it voluntarily of your own free will.


 


12.           Withholding.  You agree that any payments to
which you may be entitled pursuant to this Agreement are subject to withholding
by the Company of any applicable federal, state or local taxes; provided that you understand that you remain
ultimately responsible for any tax consequences hereunder.


 


13.           Governing Law.  This Agreement shall be governed
by and construed in accordance with the laws of the State of California,
without regard for the conflicts of law principles thereof.


 


14.           Arbitration.  (a)  Any dispute or controversy arising out of,
relating to, or in connection with this letter agreement, or the
interpretation, validity, construction, performance, breach, or termination
thereof, shall be settled by binding and confidential arbitration to be held in
Santa Clara County, California, in accordance with the National Rules for the
Resolution of Employment Disputes then in effect of the American Arbitration
Association (the “Rules”).  The arbitrator may grant injunctions
or other relief in such dispute or controversy. 
The decision of the arbitrator shall be final, conclusive and binding on
the parties to the arbitration. Judgment may be entered on the arbitrator’s
decision in any court having jurisdiction.


 


(b)           The arbitrator(s) shall apply California law to the merits
of any dispute or claim, without reference to conflicts of law rules.  The arbitration proceedings shall be governed
by federal arbitration law and by the Rules, without reference to state
arbitration law.  You hereby consent to
the personal jurisdiction of the state and federal courts located in California
for any action or proceeding arising from or relating to this letter agreement
or relating to any arbitration in which the parties are participants.


 


(c)           The Company and you shall each pay one-half of the costs
and expenses of such arbitration, and each shall separately pay its counsel
fees and expenses.


 


15.           Notices.  Except as otherwise explicitly provided in
this Agreement, any notice provided hereunder will be deemed to be given when
delivered in writing by hand or sent by overnight courier.  All notices to the Company will be marked
confidential and addressed to the Company’s General Counsel.  All notices to you will be addressed to your
most recent address as reflected on the Company’s payroll and sent to such
other address as you may provide from time to time by notice to the Company, or
any other persons or addresses as you may request from time to time by notice
to the Company.


 


16.           Counterparts. This
Agreement may be signed in counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the same
instrument.


 











 


Please acknowledge your acceptance of the foregoing
by signing where indicated below.


 


	
  

  	
   

  	
   

  	
   

  	
  AFFYMETRIX, INC.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  By:

  	
  /s/ Barbara A.
  Caulfield

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
         Name: Barbara
  A. Caulfield

  
	
   

  	
   

  	
   

  	
   

  	
         Title: Executive
  V.P. and General Counsel

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Accepted and
  Agreed:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  /s/ Thane
  Kreiner

  	
   

  	
   

  	
   

  	
   

  
	
  Thane Kreiner,
  Ph.D.

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  10 May 2006

  	
   

  	
   

  	
   

  	
   

  
	
  Date