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.


 

















 


4.                         Definitions. For purposes of this Plan,
the following terms shall have the following meanings:


 


(a)                                  “Cause” shall mean any of the following by a
Covered Person:


 


(i)                                     willful
and continued failure to substantially perform his or her duties to the Company
(other than as a result of total or partial incapacity due to physical or
mental illness);


 


(ii)                                  any willful act or omission constituting dishonesty, fraud
or other malfeasance against the Company;


 


(iii)                               conviction of a felony under the laws of the United States or
any state thereof or any other jurisdiction in which the Company conducts
business; or


 


(iv)                              breach of any of the material policies of the Company
including being under the influence of illicit drugs or alcohol at work or on
the Company’s premises.


 


(b)                                 “Change of Control”
shall mean:


 


(i)                                     any
merger or consolidation which results in the voting securities of the Company
outstanding immediately prior thereto representing immediately thereafter
(either by remaining outstanding or by being converted into voting securities
of the surviving or acquiring entity) no more than 50% of the combined voting
power of the voting securities of the Company or such surviving or acquiring
entity outstanding immediately after such merger or consolidation;


 


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


 


(iii)                               any
individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of
1934 as amended (“Exchange Act”))(a
“Person”) shall become the
beneficial owner (within the meaning of Rule 13d-3 promulgated under the
Exchange Act) of at least 50% of the total voting power represented by the
Company’s then outstanding voting securities; or


 

















 


(iv)                              any sale of all or substantially all of the assets of the
Company.


 


(c)                                  “Covered Person” or “Covered Persons” shall mean a full-time
employee of the Company or any of its wholly-owned subsidiaries or a member of
the Board of Directors of the Company who, as applicable, is either employed by
the Company or serving as a director immediately prior to a Change of Control.


 


(d)                                 “Triggering Event” shall mean:


 


(i)                                     a
Covered Person’s employment is terminated by the Company (or any successor or
acquiror) without Cause in connection with, or within twelve (12) months
following, a Change of Control; provided,
however, if an employee is terminated by the Company in connection
with a Change of Control but immediately accepts employment with the Company’s
successor or acquiror, such employee will not be deemed to be covered by this
subsection (i), but if such employee is terminated without Cause by the
successor or acquiror within the twelve (12) months following the Change of
Control, this subsection (i) will apply;


 


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


 


(iii)                               after accepting employment with the Company (or any
successor or acquiror) after a Change of Control, the Covered Person resigns
employment within six (6) months following a Change of Control due to a
Material Change in the Covered Person’s Terms of Employment. For purposes of
the foregoing, a “Material Change in the
Covered Person’s Terms of Employment” shall occur if, without the
Covered Person’s written consent: (a) in the case of a Covered Person at
the director level or above, (i) the Covered Person’s base salary or job
duties and responsibilities are materially reduced from those in effect
immediately prior to a Change of Control or (ii) the Covered Person is
subject to a substantial reduction in target bonus opportunity from the target
bonus opportunity


 

















 


of that Covered Person in effect immediately
prior to the Change of Control, or (b) in the case of a Covered Person at
Level 6 or above, such Covered Person’s principal work location is to be moved
more than forty-five (45) miles from the Covered Person’s principal work
location immediately prior to a Change of Control; or


 


(iv)                              with respect to a Covered Person who is a member of the
Board immediately prior to a Change of Control, such member of the Board is
asked to resign or not stand for reelection without Cause in connection with or
within 12 months following a Change of Control.


 


5.                         Section 409A.
Notwithstanding anything to the contrary in this Plan, if a Covered Person is a
“specified employee” within the meaning of Section 409A of the Internal
Revenue Code, as amended (“Section 409A”)
and the regulations thereunder, as determined under the Company’s established
methodology for determining specified employees, as of the date of such Covered
Person’s “separation from service” as defined in Treasury Regulation Section 1.409A-1(h) (or
any successor regulation), and if any payments or entitlements provided for in
this Plan constitute a “deferral of compensation” within the meaning of Section 409A
and cannot be paid or provided in the manner provided herein without subjecting
such Covered Person to additional tax, interest or penalties under Section 409A,
then any such payment and/or entitlement which is payable during the first six
months following such Covered Person’s “separation from service” shall be paid
or provided to such Covered Person in a lump sum on the first business day
immediately following the first to occur of (i) the six-month anniversary
of such Covered Person’s “separation from service” and (ii) the date of
such Covered Person’s death.


 


6.                         Amendment of Plan. The Board shall have
the power to amend this Plan from time to time in its discretion prior to the
occurrence of a Change of Control. Following a Change of Control, this Plan may
not be terminated or amended in a manner adversely to any Covered Person for 12
months following a Change of Control. The termination or amendment of the Plan
at any time shall not affect any benefits to which a Covered Person has
previously become entitled hereunder.


 


7.                         Mediation and Arbitration. The parties
agree that any and all disputes, claims or controversies arising out of or
relating to this Plan shall be submitted to Judicial Arbitration and Mediation
Services (“JAMS”), or its
successor, to the extent possible in the location which is the location of a
Covered Person’s principal work place, under the auspices and rules of
JAMS, for mediation, and if the matter is not resolved through mediation, then
it shall be submitted to JAMS, or its successor, for final and binding
arbitration. The provisions of this Section may be enforced by any court
of competent jurisdiction, and the party seeking enforcement shall be entitled
to an award of all costs, fees and expenses, including attorneys’ fees, to be
paid by the party against whom enforcement is ordered.


 


8.                           Superseding Plan. This Plan (i) shall
be the only plan with respect to benefits provided to Covered Persons of the
Company upon a transaction that results in a Change of Control and (ii) shall
supersede any other plan with respect to a transaction resulting in a Change of
Control previously adopted by the Company.