EXHIBIT 6 TO SCHEDULE 13D
AMENDMENT NO. 2 TO GOVERNANCE AGREEMENT
THIS AMENDMENT TO GOVERNANCE AGREEMENT ("Amendment") is entered into as
of September 8, 1998 by and between Affymetrix, Inc. (the "Company") and Glaxo
Wellcome PLC ("Glaxo Wellcome"). Capitalized terms not otherwise defined in this
Amendment have the meaning given them in that certain Governance Agreement (the
"Governance Agreement") dated as of July 6, 1995, by and between Affymetrix,
Inc. and Glaxo Wellcome.
RECITALS
A. The Company and Glaxo Wellcome constitute all of the parties
to the Governance Agreement. The parties entered into an
Amendment to Governance Agreement, dated as of April 14, 1998,
by and between the Company and Glaxo Wellcome, and accepted
and agreed to by Glaxo Wellcome Americas, Inc. ("GWAI"). Such
amendment is hereinafter referred to as "Amendment No. 1."
B. The Company, Glaxo Wellcome and GWAI desire to make the
amendments described herein to the Governance Agreement, as
amended by Amendment No. 1.
NOW THEREFORE, in consideration of the mutual promises and covenants
described below, the Company and Glaxo Wellcome hereby agree as follows:
1. Paragraph 1 of the Governance Agreement shall be amended and
restated to read in full as follows:
"So long as GLAXO WELLCOME or any of its subsidiaries,
including, but not limited to, GWAI (collectively, "GW")
together own, or are part of a group that owns, (a) a majority
of the outstanding AFFYMETRIX voting shares, GW (or such
group) will have the right to designate five out of nine
AFFYMETRIX directors, (b) less than a majority but greater
than 35% of the outstanding AFFYMETRIX voting shares, GW (or
such group) will have the right to designate four out of nine
AFFYMETRIX directors, (c) less than a 35% but greater than 25%
of the outstanding AFFYMETRIX voting shares, GW (or such
group) will have the right to designate three out of nine
AFFYMETRIX directors, (d) less than 25% but more than 15% of
the outstanding AFFYMETRIX voting shares, GW (or such group)
will have the right to designate two out of nine AFFYMETRIX
directors and (e) less than 15% but more than 5% of the
outstanding AFFYMETRIX voting shares, GW (or such group) will
have the right to designate one out of nine AFFYMETRIX
directors, in each case such designations to be included as
part of the management slate to be recommended to the
shareholders for election at each annual meeting of
shareholders subsequent to 1995. For purposes of determining
the percentage of outstanding voting shares held by GW (or
such group), shares of Series AA Preferred Stock held by GW
shall not be counted; PROVIDED HOWEVER, that upon conversion
of the shares of Series AA Preferred Stock owned by GW into
shares of Common Stock, such shares of Common Stock shall be
counted for purposes of determining the percentage of
outstanding voting shares held by
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GW (or such group). All discretionary proxies will be voted in
favor of such nominees. GW (or such group) will otherwise vote
its shares, or give its proxy to vote its shares, for the
other nominees on the slate of directors recommended to the
shareholders. In the event the Company increased the number of
directors to more than nine, or decreases the number of
directors to less than nine, the number of directors that GW
shall have the right to nominate shall be consistent with the
percentage of directors GW has the right to nominate pursuant
to Section 1 hereof; provided that, the number of directors
determined thereby shall be rounded down to the nearest whole
number of directors."
2. The parties further agree that the Company shall call a
special meeting of its shareholders as soon as practicable
after receiving from GW a written request that such a meeting
be held; provided however, that the requirements contained in
this sentence shall terminate on the date on which GW holds
less than 10% of the outstanding voting shares of the Company.
In addition, the Company agrees that within sixty days after
the date of the Company's reincorporation into Delaware (the
"Reincorporation"), it will amend its bylaws to provide that
special meetings of the stockholders may be called by any
holder of Series AA Preferred Stock that holds at least ten
percent (10%) of the voting stock of the Company (including
Series AA Preferred Stock and Common Stock).
3. The parties agree that GW will not become an Interested
Stockholder for purposes of Section 203 of the Delaware
Corporation Law as a result of the Reincorporation.
4. The rights of GW and obligations of the Company to nominate
directors of the Company under this Section 3 are subject to
the terms and conditions contained in Section 1 hereof.
5. This Amendment may be executed in two or more counterparts,
each of which shall be deemed to be an original, but all of
which together shall constitute one and the same instrument.
6. This Amendment shall be governed by and construed under the
laws of the State of California as applied to agreements
entered into solely between residents of and to be performed
entirely within such state.
7. The Governance Agreement, Amendment No. 1 and this Amendment
constitute the entire agreement between the parties hereto
pertaining to the subject matter thereof and hereof.
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IN WITNESS WHEREOF, the undersigned have executed this Amendment to
Governance Agreement as of the day and year first above written.
AFFYMETRIX, INC. GLAXO WELLCOME PLC
By: /s/ By: /s/ X.X. XXXXXX
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Title: President/CEO Title: Director
AGREED TO AND ACCEPTED BY:
GLAXO WELLCOME AMERICAS INC.
By: /s/ XXXXXX X. XXXXXX
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Title: Executive Vice President
SIGNATURE PAGE TO AFFYMETRIX, INC.
AMENDMENT TO GOVERNANCE AGREEMENT
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