EXHIBIT 3 TO SCHEDULE 13D
VOTING TRUST AGREEMENT
THIS VOTING TRUST AGREEMENT (the "Agreement") is entered
into as of April 14, 1998, by and among Affymetrix, Inc. (the "Company"),
Wachovia Bank, N.A. (the "Trustee"), and Glaxo Wellcome Americas Inc. ("GWA") as
holder of the Company's Series AA Preferred Stock. GWA and transferees of GWA
pursuant to Section 3 hereof are individually each referred to herein as a
"Party" and are collectively referred to herein as the "Parties." The Company's
Board of Directors is referred to hereto as the "Board."
RECITALS:
WHEREAS, on the date hereof, GWA purchased 1,634,522 shares of
the Company's Series AA Preferred Stock pursuant to that certain Series AA
Preferred Stock Purchase Agreement between the Company and GWA ("Securities
Purchase Agreement"); and
WHEREAS, in order to induce the Company to sell shares of
Preferred Stock to GWA, GWA has agreed to be bound by the terms of this
Agreement;
NOW, THEREFORE, in consideration of the foregoing premises and
certain other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Parties hereby agree as follows:
1. VOTING TRUST CERTIFICATES.
(a) Upon execution of this Agreement, GWA shall deliver
to the Trustee all certificates held by GWA representing the Shares (as defined
herein), and the Trustee shall issue and deliver to GWA, a voting trust
certificate in substantially the form attached hereto as SCHEDULE I (a "Voting
Trust Certificate"), for the number of Shares owned by GWA and transferred to
the Trustee. The Company shall cause such Shares to be transferred to the
Trustee on the Company's books. Any Shares acquired by GWA after the date hereof
shall be issued to the Trustee, who shall, within five (5) business days (as
defined in the Securities Purchase Agreement), issue and deliver to GWA, a
Voting Trust Certificate for the number of additional Shares so acquired by GWA.
The Trustee shall have no responsibility for Shares not delivered to it.
(b) The Trustee shall hold the Shares in trust subject
to the terms of this Agreement. The Trustee shall distribute all dividends and
other distributions to GWA or GWA's successors (other than dividends or other
distributions payable in Shares which shall not be distributed but shall remain
subject to the terms of this Agreement) in proportion to their respective
interests as represented by the Voting Trust Certificates.
(c) All Voting Trust Certificates will be registered in
the trust system maintained by the Trustee for that purpose (the "Trust
Register"). The Trustee may treat the registered holder of each Voting Trust
Certificate as the absolute owner and holder of the Shares evidenced thereby and
of all of the other rights and interests represented thereby. All transfers of
Shares will be recorded by the Trustee in the Trust Register.
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(d) If a Voting Trust Certificate is lost, stolen,
mutilated or destroyed, the Trustee will issue a duplicate Voting Trust
Certificate upon receipt by the Trustee of evidence satisfactory to the Trustee
and the Company of the loss, theft, mutilation or destruction, and upon receipt
of a bond, undertaking or other indemnity reasonably satisfactory to the Trustee
and the Company. The Trustee will also keep correct records of account of all
business transactions with respect to the Voting Trust, which records, including
the Trust Register, may be inspected by any Party and such Party's agents or
personal representatives at any time during normal business hours.
(e) In the event that during the term of this
Agreement, a Beneficial Owner elects to convert a portion of such Beneficial
Owner's Shares into Common Stock, such Beneficial Owner shall deliver to the
Trustee, (i) a notice containing the identity of the Beneficial Owner and the
number of Shares to be converted into Common Stock (the "Conversion Shares"),
and (ii) the original Voting Trust Certificate(s) representing the Conversion
Shares. Upon the Trustee's receipt of such notice and the appropriate Voting
Trust Certificate(s), the Trustee shall, as soon as practicable thereafter, (i)
deliver the Conversion Shares to the Company (or its designated transfer agent)
and (ii) issue and deliver to such Beneficial Owner a Voting Trust Certificate
representing the balance of the shares of Series AA Preferred Stock not to be
converted into Common Stock, if any, represented by the Voting Trust
Certificate(s) delivered by the Beneficial Owner to the Trustee pursuant to this
Section 1(e). Upon Trustee's delivery of the Conversion Shares to the Company
(or its designated transfer agent), the Trustee shall be fully acquitted and
discharged with respect to such Conversion Shares. After the Conversion Shares
have been delivered to the Company pursuant to this Section, the conversion of
such shares shall be governed by and pursuant to the terms and provisions of the
Certificate of Determination of Series AA Preferred Stock of the Company (the
"Certificate of Determination").
(f) In the event that during the term of this
Agreement, any Shares of a Beneficial Owner are subject to redemption pursuant
to Section 3(a) of the Certificate of Determination, the Company shall deliver
the Corporation Redemption Notice (as defined in the Certificate of
Determination) to the Trustee and to each Person set forth in Section 22 hereof
at least twenty (20) but not more than thirty (30) days prior to the Corporation
Redemption Date (as defined in the Certificate of Determination). At least ten
(10) days prior to the Corporation Redemption Date, each Beneficial Owner shall
deliver to the Trustee the original Voting Trust Certificate(s) representing the
Shares Beneficially Owned by such Person along with written instructions to the
Trustee to either (i) convert the Shares to be redeemed under Section 1(e) of
this Agreement or (ii) to surrender such Shares for redemption. The Trustee
shall, (i) at least three (3) days prior to the Corporation Redemption Date,
deliver the certificate(s) representing the Shares to be redeemed as set forth
in the Corporation Redemption Notice (and which have not previously been
converted) to the Company (or its designated transfer agent) and (ii) as soon as
practicable thereafter, issue and deliver to such Beneficial Owner a Voting
Trust Certificate representing the balance of the Shares not to be redeemed, if
any, represented by the Voting Trust Certificate(s) delivered by the Beneficial
Owner to the Trustee pursuant to this Section 1(f). Upon the Trustee's receipt
of the Early Redemption Price or Late Redemption Price (as such terms are
defined in the Certificate of Determination), as the case may be, payable with
respect to the Shares redeemed, the Trustee shall, as soon as practicable
thereafter, deliver the Early Redemption Price or Late Redemption Price, as the
case may be, payable with respect to the Shares redeemed to the Beneficial
Owners such that each Beneficial Owner receives that portion of the Early
Redemption Price or Late Redemption Price paid by the Company, as the case may
be, equal to the proportion of Shares Beneficially Owned by such Beneficial
Owner
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to the total number of Shares subject to this Agreement. Upon Trustee's delivery
of the Early Redemption Price or Late Redemption Price, as the case may be,
payable with respect to such Shares to the appropriate Beneficial Owner, the
Trustee shall be fully acquitted and discharged with respect to such redeemed
Shares.
(g) In the event that during the term of this
Agreement, Beneficial Owners holding at least a majority of the then outstanding
Shares elect to have some or all of such Beneficial Owners' Shares redeemed
pursuant to the provisions of Section 3(b) of the Certificate of Determination,
such Beneficial Owners shall deliver to the Trustee and the Company a notice
containing the identity of the Beneficial Owners, the percentage of the Shares
to be redeemed (the "Redemption Shares") and the date on which the redemption is
requested to occur. The Company agrees that such notice shall constitute notice
from the holders of the Shares under Section 3(b)(i) of the Certificate of
Determination. The Company shall deliver the Shareholder Redemption Notice (as
defined in the Certificate of Determination) to the Trustee and to each Person
set forth in Section 22 hereof at least twenty (20) but not more than thirty
(30) days prior to the Shareholder Redemption Date (as defined in the
Certificate of Determination). At least ten (10) days prior to the Shareholder
Redemption Date, each Beneficial Owner shall deliver to the Trustee the original
Voting Trust Certificate(s) representing the Shares Beneficially Owned by such
Person along with written instructions to the Trustee to either (i) convert the
Shares to be redeemed under Section 1(e) of this Agreement or (ii) to surrender
such Shares for redemption. The Trustee shall, (i) at least three (3) days prior
to the Shareholder Redemption Date, deliver the certificate(s) representing the
Redemption Shares as set forth in the Shareholder Redemption Notice (and which
have not previously been converted) to the Company (or its designated transfer
agent) and (ii) as soon as practicable thereafter, issue and deliver to such
Beneficial Owner a Voting Trust Certificate representing the balance of the
Shares not to be redeemed, if any, represented by the Voting Trust
Certificate(s) delivered by the Beneficial Owner to the Trustee pursuant to this
Section 1(g). Upon the Trustee's receipt of the Series AA Redemption Price (as
defined in the Certificate of Determination) payable with respect to such
Redemption Shares, the Trustee shall, as soon as practicable thereafter, deliver
the Series AA Redemption Price payable with respect to such Redemption Shares to
the appropriate Beneficial Owner. Upon Trustee's delivery of the Series AA
Redemption Price payable with respect to such Redemption Shares to the
appropriate Beneficial Owner, the Trustee shall be fully acquitted and
discharged with respect to such Redemption Shares.
2. TRUSTEE'S POWERS AND DUTIES.
(a) During the term of this Agreement, the Trustee shall have the exclusive
right to vote all Shares Beneficially Owned (as defined herein) by a Party on
all matters as to which such Party is entitled to vote at a meeting of the
shareholders of the Company, or otherwise, or to which such Party is entitled to
express consent or dissent to corporate action in writing without a meeting. The
Trustee shall give each Party not less than five (5) business days prior written
notice of any such vote or right to express consent or dissent. The Trustee
shall exercise such voting rights, solely as follows:
(i) With respect to any consolidation, reorganization
or merger of the Company with or into any other corporation or corporations
or a sale, conveyance, or other disposition of all or substantially all of
the Company's property or business (each a "Business Combination") or any
other transaction or proposal that requires the majority vote of each
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outstanding class of capital stock voting as separate classes and in each
case would not have an Adverse Effect on the Shares (as defined below), the
Trustee shall vote the Shares at a regular or special meeting of
shareholders (or by written consent) proportionately in accordance with the
votes cast by all holders of the Company's Common Stock for and against
such transaction or proposal. If the transaction or proposal would have an
Adverse Effect on the Shares, the Trustee shall vote the Shares in
accordance with Section 2(a)(ii) below.
(ii) For all other votes, consents or dissents by
holders of Shares and for votes that would have an Adverse Effect on the
Shares, the Trustee shall vote the Shares as follows:
(A) as directed in writing by the Beneficial
Owner of such Shares;
(B) if not so directed in writing,
proportionately in accordance with the votes cast by such
Beneficial Owner (or its affiliates) with respect to other
shares of the Company's stock owned by such Beneficial Owner
(or its affiliates); or
(C) if not so directed in writing and if
such Beneficial Owner does not own or vote any other shares of
the Company's stock on such matter, the Trustee shall not vote
such shares and such shares shall not be counted for the
purpose of determining whether a quorum is present or any
percentage of shares of the Company's capital stock is
achieved.
(b) For purposes of Section 2(a), "Adverse Effect on
the Shares" shall mean:
(i) any Business Combination in which the Beneficial
Owners of Shares would not receive as consideration for such Shares
(A) cash or securities with a fair market value equal to or greater
than the then applicable Series AA Liquidation Preference (as defined
in the Certificate of Determination of Series AA Preferred Stock) with
respect to such Shares, and (B) if the form of such consideration is
other than cash, publicly-traded equity securities of securities
convertible into publicly-traded equity securities, securities having
rights, preferences, privileges or restrictions at least equivalent to
those of the Shares; or
(ii) any other proposal or transaction that would:
(A) Increase or decrease the aggregate
number of authorized shares of the Series AA Preferred
Stock, other than an increase as provided in either
subdivision (b) of Section 405 or subdivision (c) of Section
902 of the California Corporation Code;
(B) Effect an exchange, reclassification, or
cancellation of all or part of the shares of Series AA
Preferred Stock, including a reverse stock split but
excluding a stock split;
(C) Effect an exchange, or create a right of
exchange, of all or part of the shares of another class of
capital stock into shares of the Series AA Preferred Stock;
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(D) Change the rights, preferences,
privileges or restrictions of the Shares, other than as a
result of the creation of a new series of Preferred Stock;
(E) Create a new class of shares having
rights, preferences or privileges prior to the Shares, or
increase the rights, preferences or privileges or the number
of authorized shares of any class having rights, preferences
or privileges prior to the Shares;
(F) Reclassify the Shares into series having
different rights, preferences, privileges or restrictions,
or authorize the Board to do so; or
(G) Cancel or otherwise affect dividends on
the Shares which have accrued but have not been paid.
(c) Except as expressly granted under Section 2(a)(i)
above with respect to the voting rights enumerated therein, the Trustee shall
have no rights with respect to the Shares. Without limiting the preceding
sentence, the parties acknowledge that the Trustee shall have no authority to
sell, encumber or otherwise dispose of any Shares. The Trustee shall have no
voting or other rights with respect to any shares of capital stock Beneficially
Owned as of the date hereof by any Party other than the Shares.
3. TRANSFER. The provisions of this Agreement shall be
binding upon the successors in interest to any of the Shares. The Company shall
not permit the transfer of any of the Shares on their books or issue new
certificates representing the Shares or any new Voting Trust Certificates unless
and until the person to whom such units are to be transferred shall have
executed a written agreement, substantially in the form of this Agreement,
pursuant to which such person becomes a party to this Agreement. Nothing in the
foregoing sentence shall, however, invalidate any succession in ownership
occurring by operation of law, and any successor by operation of law shall be
bound by this Agreement as fully and completely as if the successor were a party
to this Agreement.
4. NO WITHDRAWAL. No Party may withdraw from this Agreement
prior to termination of this Agreement pursuant to Section 7 hereof.
5. REPLACEMENT OR REMOVAL OF TRUSTEE. In the event of the
Trustee's dissolution, resignation, removal or inability to act, the Parties
shall select a successor or Trustee mutually acceptable to the Company and the
holders of a majority of the Shares Beneficially Owned then outstanding. Any
Trustee may be removed by the affirmative vote of a majority of the Shares then
outstanding or the Company. Notwithstanding any change in the Trustee, the
certificates for Shares standing in the name of the Trustee may be endorsed and
transferred to any successor Trustee without the further action of any Party or
predecessor Trustee with the same effect as if endorsed and transferred by the
Trustee who has ceased to act.
6. TRUSTEE'S LIABILITY AND INDEMNITY. The Trustee shall not
be liable for any error of judgment or mistake of fact or law, or for any act or
omission undertaken in good faith in connection with the Trustee's powers and
duties under this Agreement, except for the Trustee's own willful misconduct or
gross negligence. The Trustee is authorized and empowered to construe this
Agreement and its reasonable construction made in good faith shall be conclusive
and binding upon
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the Company and the Parties. The Trustee shall not be liable for acting on any
legal advice or on any notice, request or instruction or other document believed
by the Trustee to be genuine and to have been signed by the proper Party or
Parties. The Company shall indemnify the Trustee for, and hold the Trustee
harmless against, any expenses, claims, losses, damages or liabilities,
including without limitation attorneys' fees, incurred by the Trustee and
arising out of or in connection with the administration of this trust and its
rights and duties hereunder, except to the extent that a court of competent
jurisdiction determines that the Trustee is not entitled to such indemnification
because the action giving rise to such indemnification was the result of willful
misconduct or gross negligence by the Trustee. This indemnity shall survive the
termination of this Agreement.
7. TERM. This Agreement shall terminate and be of no
further force or effect on the earlier of (a) the closing of the acquisition of
the Company by another entity by means of any transaction or series of related
transactions (including, without limitation, any reorganization, merger or
consolidation) that results in the transfer of fifty percent (50%) or more of
the outstanding voting power of the Company or a sale of all or substantially
all of the assets of the Company, (b) such time as no Shares are outstanding, or
(c) ten (10) years from the date hereof.
At any time within two (2) years prior to the time of
expiration of this Agreement pursuant to Section 7(c), the Company and the
Parties may, by written agreement and with the written consent of the Trustee,
extend the duration of this Agreement for an additional period not exceeding ten
(10) years from the expiration date of this Agreement as originally fixed or as
last extended as provided in this paragraph.
As soon as practicable after the termination of this
Agreement, the Trustee shall deliver to each Party share certificates or
securities representing the number of Shares or other securities in respect of
which Voting Trust Certificates registered in the name of such Party are then
outstanding, upon the surrender of such Voting Trust Certificates properly
endorsed and upon payment by the persons entitled to receive such share
certificates or other securities of a sum sufficient to cover any tax or
governmental charge in respect of the transfer or delivery of such certificates.
If any Party cannot be located or fails or refuses to surrender Voting Trust
Certificates in exchange for Shares or other securities as aforesaid, the
Trustee shall deliver said Shares or other securities to the Company or to any
bank or trust company in California for the benefit of the Person or Persons
entitled thereto. Upon any such delivery, the Trustee shall be fully acquitted
and discharged with respect to said Shares or other securities.
8. COVENANTS OF THE COMPANY. The Company agrees to use its
best efforts to ensure that the rights granted hereunder are effective and that
the Parties hereto enjoy the benefits thereof. The Company will not, by any
voluntary action, avoid or seek to avoid the observance or performance of any of
the terms to be performed hereunder by the Company, but will at all times in
good faith assist in the carrying out of all of the provisions of this Agreement
and in the taking of all such actions as may be necessary, appropriate or
reasonably requested by the holders of a majority of the outstanding Shares in
order to protect the rights of the Parties hereunder against impairment.
9. DEFINED TERMS. As used in this Agreement, the following
terms have the respective meanings set forth below:
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BENEFICIAL OWNER: shall have the meaning set forth in Rule
13d-3(a) and (b) of the Rules and Regulations to the Securities Exchange
Act of 1934, as amended; and Beneficially Owned shall have a correlative
meaning.
PERSON: shall mean an individual, partnership, corporation,
trust, limited liability company or unincorporated organization, and a
government or agency or political subdivision thereof.
SHARES: shall consist of all shares of Series AA Preferred
Stock issued to GWA pursuant to the Securities Purchase Agreement or
thereafter obtained by a Party.
10. REMEDIES. The Company and the Parties agree and
acknowledge that money damages may not be an adequate remedy for breach of the
provisions of this Agreement and that the Company and any Party shall be
entitled, in its sole discretion, to apply to any court of competent
jurisdiction for specific performance, injunctive relief or such other equitable
remedy or remedies as the court may in its discretion order to enforce or
prevent any violations of the provisions of this Agreement, in addition to its
remedies at law. In respect of any such equitable remedy so sought, the Company
and the Parties hereby waive the requirement of the posting of any bond or the
necessity to show irreparable injury on the part of the Person seeking such
relief.
11. NOTICES. Unless otherwise provided, any notice required
or permitted under this Agreement shall be given in writing and shall be deemed
effectively given upon delivery by confirmed facsimile or reliable international
courier service or upon personal delivery to the party to be notified.
12. MODIFICATION, AMENDMENT, WAIVER. Any term hereof may be
amended and the observance of any term hereof may be waived (either generally or
in a particular instance and either retroactively or prospectively) only with
the written consent of the holders of a majority of the then outstanding voting
Shares Beneficially Owned by the Party or Parties for whose benefit such term
has been included and the Company; provided that, the Trustee must consent in
writing to any amendment or modification that changes the rights, obligations
and/or liability of the Trustee under this Agreement. Any amendment or waiver so
effected shall be binding upon the Parties hereto. The failure of the Trustee,
the Company or any Party at any time to enforce any of the provisions of this
Agreement shall in no way be construed as a waiver of such provisions and shall
not affect the rights of the Trustee, the Company or any Party thereafter to
enforce the provisions of this Agreement in accordance with its terms.
13. COMPLETE AGREEMENT. This document, the Voting Trust
Certificates, the Securities Purchase Agreement and the Amended and Restated
Articles of Incorporation (including the Certificate of Determination thereto)
of the Company embody the complete agreement and understanding between and among
the Parties hereto with respect to the subject matter hereof, and supersede and
preempt any prior understandings, agreements or representations by or among the
parties hereto, written or oral, which may have related to the subject matter
hereof.
14. SUCCESSORS AND ASSIGNS. This Agreement will bind and
inure to the benefit of and be enforceable by the Parties and their respective
permitted transferees, successors and assigns.
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15. LEGENDS.
(a) In addition to legends required by the Securities
Purchase Agreement, each certificate evidencing Shares shall bear a
legend in substantially the following form:
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS ON VOTING AND TRANSFER AS SET FORTH IN THE VOTING
TRUST AGREEMENT, DATED ON OR ABOUT APRIL 1998, A COPY OF WHICH
IS AVAILABLE FROM THE COMPANY AND ANY SUCCESSOR THERETO.
(b) Each Voting Trust Certificate evidencing Shares shall bear
a legend in substantially the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND
MAY NOT BE SOLD, TRANSFERRED OR ASSIGNED, PLEDGED OR
HYPOTHECATED ABSENT AN EFFECTIVE REGISTRATION THEREOF UNDER
SUCH ACT OR COMPLIANCE WITH RULE 144 PROMULGATED UNDER SUCH
ACT, OR UNLESS THE COMPANY HAS RECEIVED AN OPINION OF COUNSEL
TO THE HOLDER HEREOF (WHICH COUNSEL SHALL BE REASONABLY
SATISFACTORY TO THE COMPANY) THAT SUCH REGISTRATION IS NOT
REQUIRED.
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS ON VOTING AND TRANSFER AS SET FORTH IN THE VOTING
TRUST AGREEMENT, DATED AS OF APRIL __, 1998, A COPY OF WHICH
IS AVAILABLE FROM THE COMPANY AND ANY SUCCESSOR THERETO.
16. COUNTERPARTS. This Agreement may be executed in
separate counterparts, each of which will be an original and all of which taken
together will constitute one and the same Agreement.
17. APPLICABLE LAW. All questions concerning this Agreement
will be governed by and interpreted in accordance with the internal laws of the
State of California, without regard to internal law concerning choice or
conflict of law. Any disputes arising hereunder shall be resolved before the
appropriate state or federal courts in the State of California, and the Parties
hereto hereby consent to the personal jurisdiction of such courts in respect of
such disputes.
18. SEVERABILITY. If any one or more of the provisions of
this Agreement, as applied to the Trustee, the Company or any Party or any
circumstance, shall, for any reason, be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provisions of this Agreement, and this Agreement
shall be construed as if such invalid, illegal or unenforceable provision had
never been contained herein. If any one or more of the provisions of this
Agreement shall, for any reason, be held to be unenforceable as to duration,
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scope, activity or subject, such provisions shall be construed by limiting and
reducing it so as to make such provision enforceable to the extent compatible
with the then existing applicable law.
19. TRUSTEE'S EXPENSES. The Trustee shall be reimbursed by
the Company for its initial and annual fees pursuant to the fee letter dated as
of March 5, 1998, and all reasonable out-of-pocket expenses (including its
reasonable attorneys' fees) incurred pursuant to this Agreement.
20. NATURE OF RELATIONSHIP. The Trust created by this
Agreement is not intended to be, shall not be deemed to be and shall not be
treated as a general partnership, limited partnership, joint venture,
corporation, joint stock company or association. The relationship of the Parties
to the Trustee shall be solely that of beneficiaries of the Trust created by
this Agreement, and their rights and obligations shall be limited to those set
forth in this Agreement.
21. INVESTMENT REPRESENTATIONS. In acquiring Voting Trust
Certificates hereunder, each Party acknowledges and represents that such Party
has had an opportunity to discuss the business of the Company with the officers
and directors of the Company and has received satisfactory answers in response
to such inquiries. Such Party further acknowledges that the Voting Trust
Certificates are highly speculative and involve a high degree of risk and that
the Voting Trust Certificates have not been registered under the Securities Act
of 1933, as amended (the "Act") and may not be sold or otherwise disposed of
except pursuant to an exemption from the Act. Such Party represents and warrants
to the Trustee and the Company that such Party is acquiring the Voting Trust
Certificate for such Party's own account for investment and not with a view to
or for sale in connection with any distribution of said Voting Trust
Certificates or with any present intention of distributing or selling said
Voting Trust Certificates, and such Party does not presently have reason to
anticipate any change in circumstances or any particular occasion or event that
would cause it to sell said Voting Trust Certificate.
22. NOTICES. All notices, demands and other communications
made hereunder shall be in writing and shall be given either by personal
delivery, by nationally recognized overnight courier (with charges prepaid) or
by facsimile (with telephone confirmation), and shall be deemed to have been
given or made when personally delivered, the day following the date deposited
with such overnight courier service or when transmitted to telecopy machine and
confirmed by telephone, addressed to the respective parties at the following
addresses (or such other address for a party as shall be specified by like
notice):
If to the Company:
Affymetrix, Inc.
0000 Xxxxxxx Xxxxxxxxxx
Xxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxxx, Chief Financial Officer
Telephone: 000-000-0000
Facsimile: 000-000-0000
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With a copy (which shall not constitute notice) to:
Xxxxxxxxx Xxxxxxx Xxxxxx Xxxxxxxxxx Xxxxxxxx & Xxxxxxxxx,
LLP
000 Xxxxxxxxxxxx Xxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
If to the Beneficial Owner:
Glaxo Wellcome Americas Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
If to the Trustee:
Wachovia Bank, N.A.
000 Xxxx Xxxxxx
Xxxxxxx-Xxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxx X. Xxxxx, III, Executive Services
Department
Telephone: 000-000-0000
Facsimile: 000-000-0000
23. INSPECTION. A duplicate of this Agreement and any
extension hereof shall be filed with the Trustee and shall be open to inspection
by any shareholder of the Company, any holder of a Voting Trust Certificate or
the agent of either, upon the same terms as the record of shareholders of the
Company is open to inspection.
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IN WITNESS WHEREOF, the Parties have executed this Agreement
as of the date first above written.
COMPANY:
AFFYMETRIX, INC.
By: /s/ XXXXXXX XXXXX
-----------------------------------
Print Name: XXXXXXX XXXXX
---------------------------
Title: PRESIDENT/CEO
---------------------------------
Address: 0000 Xxxxxxx Xxxxxxxxxx
Xxxxx Xxxxx, XX 00000
TRUSTEE:
WACHOVIA BANK, N.A.
By: /s/ X.X. XXXX
-----------------------------------
Print Name: X.X. XXXX
---------------------------------
Title: SENIOR VICE PRESIDENT
--------------------------------
Address: 000 Xxxx Xxxxxx
Xxxxxxx-Xxxxx, XX 00000
GWA:
GLAXO WELLCOME AMERICAS INC.
By: /s/ XXXXXX X. XXXXXX
------------------------------------
Print Name: XXXXXX X. XXXXXX
----------------------------
Title: EXECUTIVE VICE PRESIDENT
---------------------------------
Address: 000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
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SCHEDULE I
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD,
TRANSFERRED OR ASSIGNED, PLEDGED OR HYPOTHECATED ABSENT AN EFFECTIVE
REGISTRATION THEREOF UNDER SUCH ACT OR COMPLIANCE WITH RULE 144
PROMULGATED UNDER SUCH ACT, OR UNLESS THE COMPANY HAS RECEIVED AN
OPINION OF COUNSEL TO THE HOLDER HEREOF (WHICH COUNSEL SHALL BE
REASONABLY SATISFACTORY TO THE COMPANY) THAT SUCH REGISTRATION IS NOT
REQUIRED.
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONS
ON VOTING AND TRANSFER AS SET FORTH IN THE VOTING TRUST AGREEMENT,
DATED AS OF APRIL __, 1998, A COPY OF WHICH IS AVAILABLE FROM THE
COMPANY AND ANY SUCCESSOR THERETO.
This certifies that Glaxo Wellcome Americas Inc. has deposited or has
caused to be deposited 1,634,522 shares of the Series AA Preferred Stock of
Affymetrix, Inc., a California corporation (the "Company"), under a Voting Trust
Agreement, dated as of April __, 1998 (the "Voting Trust Agreement"), among the
Company, Wachovia Bank, N.A. (the "Trustee"), and the Parties named in the
Voting Trust Agreement. The Trustee shall possess and be entitled to the
exclusive right to vote such shares upon the terms and subject to the conditions
stated in the Voting Trust Agreement.
This Voting Trust Certificate shall be transferable only on the records
of the Trustee upon surrender hereof by the registered holder in person or by
attorney duly authorized and, until so transferred, the Trustee may treat the
registered holder as the owner of this Voting Trust Certificate for all purposes
whatsoever, unaffected by any notice to the contrary. As a condition precedent
to the making of any transfer of this Voting Trust Certificate, the Trustee may
require the payment of a sum sufficient to cover the amount of any taxes or
other governmental charges incident thereto.
This Voting Trust Certificate is issued pursuant to, and the rights of
the holder hereof are subject to and limited by the terms and conditions of, the
Voting Trust Agreement. The holder of this Voting Trust Certificate, by the
acceptance hereof, assents to and agrees to be bound by all the terms and
conditions of the Voting Trust Agreement. Copies of the Voting Trust Agreement
are on file at the principal office of the Company and at the office of the
Trustee.
Certificates for the number of shares in respect of which this Voting
Trust Certificate was issued, or the net proceeds in cash or property of said
number of shares at the time of surrender hereof, all as provided in the Voting
Trust Agreement, shall be deliverable hereunder upon the termination of the
Voting Trust Agreement.
Page 79 of 102
Dated: ____________, 199_
WACHOVIA BANK, N.A.,
as Trustee
By:-------------------------------------
Its:------------------------------------
Page 80 of 102
