Exhibit
4.18


 


AFFYMAX,
INC.


 


and


 


                    , AS WARRANT AGENT


 


FORM OF
DEBT SECURITIES


WARRANT
AGREEMENT


 


DATED
AS OF                     


 

















 


AFFYMAX,
INC.


 


FORM OF
DEBT SECURITIES WARRANT AGREEMENT


 


DEBT SECURITIES WARRANT AGREEMENT (this “Agreement”), dated as of                     
between AFFYMAX, INC., a Delaware corporation (the “Company”) and                     
, a [corporation] [national banking association] organized and existing under
the laws of
                    
and having a corporate trust office in
                    ,
as warrant agent (the “Warrant Agent”).


 


WHEREAS, the Company has entered into an indenture dated as of
[                    
(the “Senior Indenture”), with
                    ,
as trustee (such trustee, and any successors to such trustee, herein called the
“Senior Trustee”), providing for the issuance from time to time of its
unsubordinated debt securities, to be issued in one or more series as provided
in the Senior Indenture (the “Debt Securities”);] [                    
(the “Subordinated Indenture”), with                     ,
as trustee (such trustee, and any successors to such trustee, herein called the
“Subordinated Trustee”), providing for the issuance from time to time of its
subordinated debt securities, to be issued in one or more series as provided in
the Subordinated Indenture (the “Debt Securities”);]


 


WHEREAS, the Company proposes to sell [If Warrants are sold
with other securities- title of such other securities being offered (the “Other
Securities”) with] warrant certificates evidencing one or more warrants (the “Warrants”
or, individually, a “Warrant”) representing the right to purchase [title of
Debt Securities purchasable through exercise of Warrants] (the “Warrant Debt
Securities”), such warrant certificates and other warrant certificates issued
pursuant to this Agreement being herein called the “Warrant Certificates”; and


 


WHEREAS, the Company desires the Warrant Agent to act on
behalf of the Company, and the Warrant Agent is willing so to act, in
connection with the issuance, registration, transfer, exchange, exercise and
replacement of the Warrant Certificates, and in this Agreement wishes to set
forth, among other things, the form and provisions of the Warrant Certificates
and the terms and conditions on which they may be issued, registered,
transferred, exchanged, exercised and replaced.


 


NOW, THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the parties hereto agree as follows:


 


ARTICLE
1


 


ISSUANCE
OF WARRANTS AND EXECUTION AND DELIVERY OF WARRANT


CERTIFICATES


 


1.1
Issuance of Warrants. [If Warrants alone—Upon issuance, each Warrant Certificate shall
evidence one or more Warrants.] [If Other Securities and Warrants—Warrant
Certificates shall be [initially] issued in connection with the issuance of the
Other Securities [but shall be separately transferable on and after                     
(the “Detachable Date”)] [and shall not be separately transferable] and each
Warrant Certificate shall evidence one or more Warrants.] Each Warrant
evidenced thereby shall represent the right, subject to the provisions
contained herein and therein, to purchase one Warrant Debt Security. [If Other
Securities and Warrants—Warrant Certificates shall be initially issued in units
with the Other Securities and each Warrant Certificate included in such a unit
shall evidence                     
Warrants for each [$                    
principal amount] [                    
shares] of Other Securities included in such unit].


 


1.2
Execution and Delivery of Warrant Certificates. Each Warrant Certificate, whenever issued, shall be
in registered form substantially in the form set forth in Exhibit A
hereto, shall be dated the date of its countersignature by the Warrant Agent
and may have such letters, numbers, or other marks of identification or
designation and such legends or endorsements printed, lithographed or engraved
thereon as the officers of the Company executing the same may approve
(execution thereof to be conclusive evidence of such approval) and as are not
inconsistent with the provisions of this Agreement, or as may be required to
comply with any law or with any rule or regulation made pursuant thereto
or with any rule or regulation of any securities exchange on which the
Warrants may be listed, or to conform to usage. The Warrant Certificates shall
be signed on behalf of the Company by any of its present or future chief
executive officers, presidents, senior vice presidents, vice presidents, chief
financial officers, chief legal officers, treasurers, assistant treasurers,
controllers, assistant controllers, secretaries or assistant secretaries under
its corporate seal reproduced thereon. Such signatures may be manual or
facsimile signatures of such authorized officers and may be imprinted or
otherwise reproduced on the Warrant Certificates. The seal of the Company may
be in the form of a facsimile thereof and may be impressed, affixed, imprinted
or otherwise reproduced on the Warrant Certificates.


 


No Warrant Certificate shall
be valid for any purpose, and no Warrant evidenced thereby shall be
exercisable, until such Warrant


 

















 


Certificate has been
countersigned by the manual signature of the Warrant Agent. Such signature by
the Warrant Agent upon any Warrant Certificate executed by the Company shall be
conclusive evidence that the Warrant Certificate so countersigned has been duly
issued hereunder.


 


In case any officer of
the Company who shall have signed any of the Warrant Certificates either
manually or by facsimile signature shall cease to be such officer before the
Warrant Certificates so signed shall have been countersigned and delivered by
the Warrant Agent, such Warrant Certificates may be countersigned and delivered
notwithstanding that the person who signed such Warrant Certificates ceased to
be such officer of the Company; and any Warrant Certificate may be signed on
behalf of the Company by such persons as, at the actual date of the execution
of such Warrant Certificate, shall be the proper officers of the Company,
although at the date of the execution of this Agreement any such person was not
such officer.


 


The term “holder” or “holder
of a Warrant Certificate” as used herein shall mean any person in whose name at
the time any Warrant Certificate shall be registered upon the books to be
maintained by the Warrant Agent for that purpose [If Other Securities and
Warrants are not immediately detachable—or upon the registration of the Other
Securities prior to the Detachable Date. Prior to the Detachable Date, the Company
will, or will cause the registrar of the Other Securities to, make available at
all times to the Warrant Agent such information as to holders of the Other
Securities as may be necessary to keep the Warrant Agent’s records up to date].


 


1.3
Issuance of Warrant Certificates. Warrant Certificates evidencing the right to purchase
Warrant Debt Securities may be executed by the Company and delivered to the
Warrant Agent upon the execution of this Warrant Agreement or from time to time
thereafter. The Warrant Agent shall, upon receipt of Warrant Certificates duly
executed on behalf of the Company, countersign such Warrant Certificates and
shall deliver such Warrant Certificates to or upon the order of the Company.


 


ARTICLE
2


 


WARRANT
PRICE, DURATION AND EXERCISE OF WARRANTS


 


2.1
Warrant Price.
During the period specified in Section 2.2, each Warrant shall, subject to
the terms of this Warrant Agreement and the applicable Warrant Certificate,
entitle the holder thereof, to purchase the principal amount of Warrant Debt
Securities specified in the applicable Warrant Certificate at an exercise price
of                     %
of the principal amount thereof [plus accrued amortization, if any, of the
original issue discount of the Warrant Debt Securities] [plus accrued interest,
if any, from the most recent date from which interest shall have been paid on
the Warrant Debt Securities or, if no interest shall have been paid on the
Warrant Debt Securities, from the date of their initial issuance.] [The
original issue discount ($                      for each $1,000 principal amount of Warrant
Debt Securities) will be amortized at a                     
% annual rate, computed on a[n] [semi-] annual basis [using a 360-day year
consisting of twelve 30-day months].] Such purchase price for the Warrant Debt
Securities is referred to in this Agreement as the “Warrant Price.”


 


2.2
Duration of Warrants. Each Warrant may be exercised in whole or in part at any time, as
specified herein, on or after [the date thereof] [                    
] and at or before [                    
] p.m., [City] time, on
                    
or such later date as the Company may designate by notice to the Warrant Agent
and the holders of Warrant Certificates mailed to their addresses as set forth
in the record books of the Warrant Agent (the “Expiration Date”). Each Warrant
not exercised at or before [                    
] p.m., [City] time, on the Expiration Date shall become void, and all
rights of the holder of the Warrant Certificate evidencing such Warrant under
this Agreement shall cease.


 


2.3
Exercise Of Warrants.


 


(a) During the period specified in Section 2.2,
the Warrants may be exercised to purchase a whole number of Warrant Debt
Securities in registered form by providing certain information as set forth on
the reverse side of the Warrant Certificate and by paying in full, in lawful
money of the United States of America, [in cash or by certified check or
official bank check in New York Clearing House funds] [by bank wire transfer in
immediately available funds] the Warrant Price for each Warrant Debt Security
with respect to which a Warrant is being exercised to the Warrant Agent at its
corporate trust office, provided that such exercise is subject to receipt
within five business days of such payment by the Warrant Agent of the Warrant
Certificate with the form of election to purchase Warrant Debt Securities set
forth on the reverse side of the Warrant Certificate properly completed and
duly executed. The date on which payment in full of the Warrant Price is
received by the Warrant Agent shall, subject to receipt of the Warrant
Certificate as aforesaid, be deemed to be the date on which the Warrant is
exercised; provided, however, that if, at the date of receipt of such Warrant
Certificates and payment in full of the Warrant Price, the transfer books for
the Warrant Debt Securities purchasable upon the exercise of such Warrants
shall be closed, no such receipt of such Warrant Certificates and no such
payment of such Warrant Price shall be effective to constitute the person so
designated to be named as the holder of record of such Warrant Debt Securities
on such date, but shall be effective to constitute such person as the holder of
record of such Warrant Debt Securities for all purposes at the opening of
business on the next succeeding day on which the transfer books for the Warrant
Debt Securities purchasable upon the exercise of such Warrants shall be opened,
and the certificates for the Warrant Debt Securities in respect of which such
Warrants are then exercised shall be issuable as of the date on such next
succeeding day on which the transfer books shall next be opened, and until


 

















 


such date the Company
shall be under no duty to deliver any certificate for such Warrant Debt
Securities. The Warrant Agent shall deposit all funds received by it in payment
of the Warrant Price in an account of the Company maintained with it and shall
advise the Company by telephone at the end of each day on which a payment for
the exercise of Warrants is received of the amount so deposited to its account.
The Warrant Agent shall promptly confirm such telephone advice to the Company
in writing.


 


(b) The Warrant Agent shall, from time to
time, as promptly as practicable, advise the Company of (i) the number of
Warrant Debt Securities with respect to which Warrants were exercised, (ii) the
instructions of each holder of the Warrant Certificates evidencing such
Warrants with respect to delivery of the Warrant Debt Securities to which such
holder is entitled upon such exercise, (iii) delivery of Warrant
Certificates evidencing the balance, if any, of the Warrants for the remaining
Warrant Debt Securities after such exercise, and (iv) such other
information as the Company or the [Senior] [Subordinated] Trustee shall
reasonably require.


 


(c) As soon as practicable after the exercise
of any Warrant, the Company shall issue, pursuant to the Indenture, in
authorized denominations, to or upon the order of the holder of the Warrant
Certificate evidencing such Warrant, the Warrant Debt Securities to which such
holder is entitled, in fully registered form, registered in such name or names
as may be directed by such holder. If fewer than all of the Warrants evidenced
by such Warrant Certificate are exercised, the Company shall execute, and an
authorized officer of the Warrant Agent shall manually countersign and deliver,
a new Warrant Certificate evidencing Warrants for the number of Warrant Debt
Securities remaining unexercised.


 


(d) The Company shall not be required to pay
any stamp or other tax or other governmental charge required to be paid in
connection with any transfer involved in the issue of the Warrant Debt
Securities, and in the event that any such transfer is involved, the Company
shall not be required to issue or deliver any Warrant Debt Securities until
such tax or other charge shall have been paid or it has been established to the
Company’s satisfaction that no such tax or other charge is due.


 


(e) Prior to the issuance of any Warrants
there shall have been reserved, and the Company shall at all times through the
Expiration Date keep reserved, out of its authorized but unissued Warrant Debt
Securities, a number of shares sufficient to provide for the exercise of the
Warrants.


 


ARTICLE
3


 


OTHER
PROVISIONS RELATING TO RIGHTS OF HOLDERS OF WARRANT


CERTIFICATES


 


3.1
No Rights As Holders of Warrant Debt Securities Conferred By Warrants or
Warrant Certificates. No Warrant Certificate or Warrant evidenced thereby shall entitle the
holder thereof to any of the rights of a holder of Warrant Debt Securities,
including, without limitation, the right to receive the payment of principal of
(or premium, if any) or interest, if any, on the Warrant Debt Securities or to
enforce any of the covenants in the Indenture.


 


3.2
Lost, Stolen, Mutilated or Destroyed Warrant Certificates. Upon receipt by the Warrant Agent of
evidence reasonably satisfactory to it and the Company of the ownership of and
the loss, theft, destruction or mutilation of any Warrant Certificate and/or
indemnity reasonably satisfactory to the Warrant Agent and the Company and, in
the case of mutilation, upon surrender of the mutilated Warrant Certificate to
the Warrant Agent for cancellation, then, in the absence of notice to the
Company or the Warrant Agent that such Warrant Certificate has been acquired by
a bona fide purchaser, the Company shall execute, and an authorized officer of
the Warrant Agent shall manually countersign and deliver, in exchange for or in
lieu of the lost, stolen, destroyed or mutilated Warrant Certificate, a new
Warrant Certificate of the same tenor and evidencing Warrants for a like
principal amount of Warrant Debt Securities. Upon the issuance of any new
Warrant Certificate under this Section 3.2, the Company may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses (including the fees
and expenses of the Warrant Agent) in connection therewith. Every substitute
Warrant Certificate executed and delivered pursuant to this Section 3.2 in
lieu of any lost, stolen or destroyed Warrant Certificate shall represent an
additional contractual obligation of the Company, whether or not the lost,
stolen or destroyed Warrant Certificate shall be at any time enforceable by anyone,
and shall be entitled to the benefits of this Agreement equally and
proportionately with any and all other Warrant Certificates duly executed and
delivered hereunder. The provisions of this Section 3.2 are exclusive and
shall preclude (to the extent lawful) all other rights and remedies with
respect to the replacement of mutilated, lost, stolen or destroyed Warrant
Certificates.


 


3.3
Holder Of Warrant Certificate May Enforce Rights. Notwithstanding any of the provisions of
this Agreement, any holder of any Warrant Certificate, without the consent of
the Warrant Agent, the [Senior] [Subordinated] Trustee, the holder of any
Warrant Debt Securities or the holder of any other Warrant Certificate, may, in
such holder’s own behalf and for such holder’s own benefit, enforce, and may
institute and maintain any suit, action or proceeding against the Company
suitable to enforce, or otherwise in respect of, such holder’s right to
exercise the Warrants evidenced by such holder’s Warrant Certificate in the
manner provided in such holder’s Warrant Certificates and in this Agreement.


 


3.4
Merger, Sale, Conveyance or Lease. In case of (a) any share exchange, merger or
similar transaction of the Company with or


 

















 


into another person or
entity (other than a share exchange, merger or similar transaction in which the
Company is the acquiring or surviving corporation) or (b) the sale,
exchange, lease, transfer or other disposition of all or substantially all of
the properties and assets of the Company as an entirety (in any such case, a “Reorganization
Event”), then, as a condition of such Reorganization Event, lawful provisions
shall be made, and duly executed documents evidencing the same from the Company’s
successor shall be delivered to the holders of the Warrants, so that such
successor shall succeed to and be substituted for the Company, and assume all
the Company’s obligations under, this Agreement and the Warrants. The Company
shall thereupon be relieved of any further obligation hereunder or under the
Warrants, and the Company as the predecessor corporation may thereupon or at
any time thereafter be dissolved, wound up or liquidated. Such successor or
assuming entity thereupon may cause to be signed, and may issue either in its
own name or in the name of the Company, any or all of the Warrants issuable
hereunder which heretofore shall not have been signed by the Company, and may
execute and deliver securities in its own name, in fulfillment of its
obligations to deliver Warrant Debt Securities upon exercise of the Warrants.
All the Warrants so issued shall in all respects have the same legal rank and
benefit under this Agreement as the Warrants theretofore or thereafter issued
in accordance with the terms of this Agreement as though all of such Warrants
had been issued at the date of the execution hereof. In any case of any such
Reorganization Event, such changes in phraseology and form (but not in
substance) may be made in the Warrants thereafter to be issued as may be
appropriate. The Warrant Agent may receive a written opinion of legal counsel
as conclusive evidence that any such Reorganization Event complies with the
provisions of this Section 3.4.


 


3.5
Notice To Warrantholders. In case the Company shall (a) effect any Reorganization Event or (b) make
any distribution on or in respect of the [title of Warrant Debt Securities] in
connection with the dissolution, liquidation or winding up of the Company, then
the Company shall mail to each holder of Warrants at such holder’s address as
it shall appear on the books of the Warrant Agent, at least ten days prior to
the applicable date hereinafter specified, a notice stating the date on which
such Reorganization Event, dissolution, liquidation or winding up is expected
to become effective, and the date as of which it is expected that holders of
[title of Warrant Debt Securities] of record shall be entitled to exchange
their shares of [title of Warrant Debt Securities] for securities or other
property deliverable upon such Reorganization Event, dissolution, liquidation
or winding up. No failure to mail such notice nor any defect therein or in the
mailing thereof shall affect any such transaction.


 


ARTICLE
4


 


EXCHANGE
AND TRANSFER OF WARRANT CERTIFICATES


 


4.1
Exchange and Transfer of Warrant Certificates. [If Other Securities with Warrants which are
immediately detachable—Upon] [If Other Securities with Warrants which are not
immediately detachable—Prior to the Detachable Date, a Warrant Certificate may
be exchanged or transferred only together with the Other Security to which the
Warrant Certificate was initially attached, and only for the purpose of
effecting or in conjunction with an exchange or transfer of such Other
Security. Prior to any Detachable Date, each transfer of the Other Security
shall operate also to transfer the related Warrant Certificates. After the
Detachable Date, upon] surrender at the corporate trust office of the Warrant
Agent, Warrant Certificates evidencing Warrants may be exchanged for Warrant
Certificates in other denominations evidencing such Warrants or the transfer
thereof may be registered in whole or in part; provided that such other Warrant
Certificates evidence Warrants for the same aggregate principal amount of
Warrant Debt Securities as the Warrant Certificates so surrendered. The Warrant
Agent shall keep, at its corporate trust office, books in which, subject to
such reasonable regulations as it may prescribe, it shall register Warrant
Certificates and exchanges and transfers of outstanding Warrant Certificates,
upon surrender of the Warrant Certificates to the Warrant Agent at its
corporate trust office for exchange or registration of transfer, properly
endorsed or accompanied by appropriate instruments of registration of transfer
and written instructions for transfer, all in form satisfactory to the Company
and the Warrant Agent. No service charge shall be made for any exchange or
registration of transfer of Warrant Certificates, but the Company may require
payment of a sum sufficient to cover any stamp or other tax or other
governmental charge that may be imposed in connection with any such exchange or
registration of transfer. Whenever any Warrant Certificates are so surrendered
for exchange or registration of transfer, an authorized officer of the Warrant
Agent shall manually countersign and deliver to the person or persons entitled
thereto a Warrant Certificate or Warrant Certificates duly authorized and
executed by the Company, as so requested. The Warrant Agent shall not be
required to effect any exchange or registration of transfer which will result
in the issuance of a Warrant Certificate evidencing a Warrant for a fraction of
a Warrant Debt Security or a number of Warrants for a whole number of Warrant
Debt Securities and a fraction of a Warrant Debt Security. All Warrant
Certificates issued upon any exchange or registration of transfer of Warrant
Certificates shall be the valid obligations of the Company, evidencing the same
obligations and entitled to the same benefits under this Agreement as the
Warrant Certificate surrendered for such exchange or registration of transfer.


 


4.2
Treatment of Holders of Warrant Certificates. [If Other Securities and Warrants are not immediately
detachable—Prior to the Detachable Date, the Company, the Warrant Agent and all
other persons may treat the owner of the Other Security as the owner of the
Warrant Certificates initially attached thereto for any purpose and as the
person entitled to exercise the rights represented by the Warrants evidenced by
such Warrant Certificates, any notice to the contrary notwithstanding. After
the Detachable Date and prior to due presentment of a Warrant Certificate for
registration of transfer, the] [The] Company, the Warrant Agent and all other
persons


 

















 


may treat the registered
holder of a Warrant Certificate as the absolute owner thereof for any purpose
and as the person entitled to exercise the rights represented by the Warrants
evidenced thereby, any notice to the contrary notwithstanding.


 


4.3
Cancellation of Warrant Certificates. Any Warrant Certificate surrendered for exchange,
registration of transfer or exercise of the Warrants evidenced thereby shall,
if surrendered to the Company, be delivered to the Warrant Agent and all
Warrant Certificates surrendered or so delivered to the Warrant Agent shall be
promptly canceled by the Warrant Agent and shall not be reissued and, except as
expressly permitted by this Agreement, no Warrant Certificate shall be issued
hereunder in exchange therefor or in lieu thereof. The Warrant Agent shall
deliver to the Company from time to time or otherwise dispose of canceled
Warrant Certificates in a manner satisfactory to the Company.


 


ARTICLE
5


 


CONCERNING
THE WARRANT AGENT


 


5.1
Warrant Agent.
The Company hereby appoints                     
as Warrant Agent of the Company in respect of the Warrants and the Warrant
Certificates upon the terms and subject to the conditions herein set forth, and
                    
hereby accepts such appointment. The Warrant Agent shall have the powers and
authority granted to and conferred upon it in the Warrant Certificates and
hereby and such further powers and authority to act on behalf of the Company as
the Company may hereafter grant to or confer upon it. All of the terms and
provisions with respect to such powers and authority contained in the Warrant Certificates
are subject to and governed by the terms and provisions hereof.


 


5.2
Conditions of Warrant Agent’s Obligations. The Warrant Agent accepts its obligations herein set
forth upon the terms and conditions hereof, including the following to all of which
the Company agrees and to all of which the rights hereunder of the holders from
time to time of the Warrant Certificates shall be subject:


 


(a) Compensation
and Indemnification.
The Company agrees promptly to pay the Warrant Agent the compensation to be
agreed upon with the Company for all services rendered by the Warrant Agent and
to reimburse the Warrant Agent for reasonable out-of-pocket expenses (including
reasonable counsel fees) incurred without negligence, bad faith or willful
misconduct by the Warrant Agent in connection with the services rendered
hereunder by the Warrant Agent. The Company also agrees to indemnify the
Warrant Agent for, and to hold it harmless against, any loss, liability or
expense incurred without negligence, bad faith or willful misconduct on the
part of the Warrant Agent, arising out of or in connection with its acting as
Warrant Agent hereunder, including the reasonable costs and expenses of
defending against any claim of such liability.


 


(b) Agent
for the Company.
In acting under this Warrant Agreement and in connection with the Warrant
Certificates, the Warrant Agent is acting solely as agent of the Company and
does not assume any obligations or relationship of agency or trust for or with
any of the holders of Warrant Certificates or beneficial owners of Warrants.


 


(c) Counsel. The Warrant Agent may consult with
counsel satisfactory to it, which may include counsel for the Company, and the
written advice of such counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in accordance with the advice of such counsel.


 


(d) Documents. The Warrant Agent shall be protected
and shall incur no liability for or in respect of any action taken or omitted
by it in reliance upon any Warrant Certificate, notice, direction, consent,
certificate, affidavit, statement or other paper or document reasonably
believed by it to be genuine and to have been presented or signed by the proper
parties.


 


(e) Certain
Transactions. The
Warrant Agent, and its officers, directors and employees, may become the owner
of, or acquire any interest in, Warrants, with the same rights that it or they
would have if it were not the Warrant Agent hereunder, and, to the extent permitted
by applicable law, it or they may engage or be interested in any financial or
other transaction with the Company and may act on, or as depositary, trustee or
agent for, any committee or body of holders of Warrant Debt Securities or other
obligations of the Company as freely as if it were not the Warrant Agent
hereunder. Nothing in this Warrant Agreement shall be deemed to prevent the
Warrant Agent from acting as [Senior] [Subordinated] Trustee under the [Senior]
[Subordinated] Indenture.


 


(f) No
Liability for Interest. Unless otherwise agreed with the Company, the Warrant Agent shall have
no liability for interest on any monies at any time received by it pursuant to
any of the provisions of this Agreement or of the Warrant Certificates.


 


(g) No
Liability for Invalidity. The Warrant Agent shall have no liability with respect to any
invalidity of this Agreement or any of the Warrant Certificates (except as to
the Warrant Agent’s countersignature thereon).


 


(h) No
Responsibility for Representations. The Warrant Agent shall not be responsible for any of
the recitals or representations herein or in the Warrant Certificates (except
as to the Warrant Agent’s countersignature thereon), all of which are made
solely by the Company.


 


(i) No
Implied Obligations.
The Warrant Agent shall be obligated to perform only such duties as are herein
and in the Warrant


 

















 


Certificates specifically
set forth and no implied duties or obligations shall be read into this
Agreement or the Warrant Certificates against the Warrant Agent. The Warrant
Agent shall not be under any obligation to take any action hereunder which may
tend to involve it in any expense or liability, the payment of which within a
reasonable time is not, in its reasonable opinion, assured to it. The Warrant Agent
shall not be accountable or under any duty or responsibility for the use by the
Company of any of the Warrant Certificates authenticated by the Warrant Agent
and delivered by it to the Company pursuant to this Agreement or for the
application by the Company of the proceeds of the Warrant Certificates. The
Warrant Agent shall have no duty or responsibility in case of any default by
the Company in the performance of its covenants or agreements contained herein
or in the Warrant Certificates or in the case of the receipt of any written
demand from a holder of a Warrant Certificate with respect to such default,
including, without limiting the generality of the foregoing, any duty or
responsibility to initiate or attempt to initiate any proceedings at law or
otherwise or, except as provided in Section 6.2 hereof, to make any demand
upon the Company.


 


5.3
Resignation , Removal and Appointment of Successors.


 


(a) The Company agrees, for the benefit of
the holders from time to time of the Warrant Certificates, that there shall at
all times be a Warrant Agent hereunder until all the Warrants have been
exercised or are no longer exercisable.


 


(b) The Warrant Agent may at any time resign
as agent by giving written notice to the Company of such intention on its part,
specifying the date on which its desired resignation shall become effective;
provided that such date shall not be less than three months after the date on
which such notice is given unless the Company otherwise agrees. The Warrant
Agent hereunder may be removed at any time by the filing with it of an
instrument in writing signed by or on behalf of the Company and specifying such
removal and the intended date when it shall become effective. Such resignation
or removal shall take effect upon the appointment by the Company, as
hereinafter provided, of a successor Warrant Agent (which shall be a bank or
trust company authorized under the laws of the jurisdiction of its organization
to exercise corporate trust powers) and the acceptance of such appointment by such
successor Warrant Agent. The obligation of the Company under Section 5.2(a) shall
continue to the extent set forth therein notwithstanding the resignation or
removal of the Warrant Agent.


 


(c) In case at any time the Warrant Agent
shall resign, or shall be removed, or shall become incapable of acting, or
shall be adjudged a bankrupt or insolvent, or shall commence a voluntary case
under the Federal bankruptcy laws, as now or hereafter constituted, or under
any other applicable Federal or state bankruptcy, insolvency or similar law or
shall consent to the appointment of or taking possession by a receiver,
custodian, liquidator, assignee, trustee, sequestrator (or other similar
official) of the Warrant Agent or its property or affairs, or shall make an assignment
for the benefit of creditors, or shall admit in writing its inability to pay
its debts generally as they become due, or shall take corporate action in
furtherance of any such action, or a decree or order for relief by a court
having jurisdiction in the premises shall have been entered in respect of the
Warrant Agent in an involuntary case under the Federal bankruptcy laws, as now
or hereafter constituted, or any other applicable Federal or state bankruptcy,
insolvency or similar law, or a decree or order by a court having jurisdiction
in the premises shall have been entered for the appointment of a receiver,
custodian, liquidator, assignee, trustee, sequestrator (or similar official) of
the Warrant Agent or of its property or affairs, or any public officer shall
take charge or control of the Warrant Agent or of its property or affairs for
the purpose of rehabilitation, conservation, winding up or liquidation, a
successor Warrant Agent, qualified as aforesaid, shall be appointed by the
Company by an instrument in writing, filed with the successor Warrant Agent.
Upon the appointment as aforesaid of a successor Warrant Agent and acceptance
by the successor Warrant Agent of such appointment, the Warrant Agent shall
cease to be Warrant Agent hereunder.


 


(d) Any successor Warrant Agent appointed
hereunder shall execute, acknowledge and deliver to its predecessor and to the
Company an instrument accepting such appointment hereunder, and thereupon such
successor Warrant Agent, without any further act, deed or conveyance, shall
become vested with all the authority, rights, powers, trusts, immunities,
duties and obligations of such predecessor with like effect as if originally
named as Warrant Agent hereunder, and such predecessor, upon payment of its
charges and disbursements then unpaid, shall thereupon become obligated to
transfer, deliver and pay over, and such successor Warrant Agent shall be
entitled to receive, all monies, securities and other property on deposit with
or held by such predecessor, as Warrant Agent hereunder.


 


(e) Any corporation into which the Warrant
Agent hereunder may be merged or converted or any corporation with which the
Warrant Agent may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Warrant Agent shall be a
party, or any corporation to which the Warrant Agent shall sell or otherwise
transfer all or substantially all the assets and business of the Warrant Agent,
provided that it shall be qualified as aforesaid, shall be the successor
Warrant Agent under this Agreement without the execution or filing of any paper
or any further act on the part of any of the parties hereto.


 


ARTICLE
6


 


MISCELLANEOUS


 


6.1
Amendment. This
Agreement may be amended by the parties hereto, without the consent of the
holder of any Warrant Certificate, for the purpose of curing any ambiguity, or
of curing, correcting or supplementing any defective provision contained


 

















 


herein, or making any
other provisions with respect to matters or questions arising under this
Agreement as the Company and the Warrant Agent may deem necessary or desirable;
provided that such action shall not materially adversely affect the interests
of the holders of the Warrant Certificates.


 


6.2
Notices and Demands to the Company and Warrant Agent. If the Warrant Agent shall receive any
notice or demand addressed to the Company by the holder of a Warrant
Certificate pursuant to the provisions of the Warrant Certificates, the Warrant
Agent shall promptly forward such notice or demand to the Company.


 


6.3
Addresses. Any
communication from the Company to the Warrant Agent with respect to this
Agreement shall be addressed to                      
, Attention:
                      and any communication from the Warrant Agent
to the Company with respect to this Agreement shall be addressed to Affymax, Inc.,
4001 Miranda Avenue, Palo Alto, CA 94304, Attention: Chief Financial Officer
(or such other address as shall be specified in writing by the Warrant Agent or
by the Company).


 


6.4
Governing Law. This
Agreement and each Warrant Certificate issued hereunder shall be governed by
and construed in accordance with the laws of the State of New York.


 


6.5
Delivery Of Prospectus. The Company shall furnish to the Warrant Agent sufficient copies of a
prospectus meeting the requirements of the Securities Act of 1933, as amended,
relating to the Warrant Debt Securities deliverable upon exercise of the
Warrants (the “Prospectus”), and the Warrant Agent agrees that upon the
exercise of any Warrant, the Warrant Agent will deliver to the holder of the
Warrant Certificate evidencing such Warrant, prior to or concurrently with the
delivery of the Warrant Debt Securities issued upon such exercise, a
Prospectus. The Warrant Agent shall not, by reason of any such delivery, assume
any responsibility for the accuracy or adequacy of such Prospectus.


 


6.6
Obtaining of Governmental Approvals. The Company will from time to time take all action
which may be necessary to obtain and keep effective any and all permits,
consents and approvals of governmental agencies and authorities and securities
act filings under United States Federal and state laws (including without
limitation a registration statement in respect of the Warrants and Warrant Debt
Securities under the Securities Act of 1933, as amended), which may be or
become requisite in connection with the issuance, sale, transfer, and delivery
of the Warrant Debt Securities issued upon exercise of the Warrants, the
issuance, sale, transfer and delivery of the Warrants or upon the expiration of
the period during which the Warrants are exercisable.


 


6.7
Persons Having Rights Under Warrant Agreement. Nothing in this Agreement shall give to any person
other than the Company, the Warrant Agent and the holders of the Warrant
Certificates any right, remedy or claim under or by reason of this Agreement.


 


6.8
Headings. The
descriptive headings of the several Articles and Sections of this Agreement are
inserted for convenience only and shall not control or affect the meaning or
construction of any of the provisions hereof.


 


6.9
Counterparts.
This Agreement may be executed in any number of counterparts, each of which as
so executed shall be deemed to be an original, but such counterparts shall
together constitute but one and the same instrument.


 


6.10
Inspection of Agreement. A copy of this Agreement shall be available at all reasonable times at
the principal corporate trust office of the Warrant Agent for inspection by the
holder of any Warrant Certificate. The Warrant Agent may require such holder to
submit his Warrant Certificate for inspection by it.


 

















 


IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, all as of the day and year first above written.


 


	
   

  	
  AFFYMAX, INC.

  
	
   

  	
   

  
	
   

  	
  By

  
	
   

  	
   

  
	
   

  	
  Its

  
	
  Attest:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  WARRANT AGENT

  
	
   

  	
   

  
	
   

  	
  By

  
	
   

  	
   

  
	
  Attest:

  	
  Its

  



 


[SIGNATURE PAGE TO
DEBT SECURITIES WARRANT AGREEMENT]


 

















 


EXHIBIT
A


 


FORM OF
WARRANT CERTIFICATE


[FACE
OF WARRANT CERTIFICATE]


 


	
   

  	
   

  	
   

  
	
  [[Form if Warrants
  are attached to Other Securities and are not immediately detachable.]

  	
   

  	
  [Prior to                    ,
  this Warrant Certificate cannot be transferred or exchanged unless attached
  to a [Title of Other Securities].]

  
	
   

  	
   

  	
   

  
	
  [Form of Legend if
  Warrants are not immediately exercisable.]

  	
   

  	
  [Prior to                    ,
  Warrants evidenced by this Warrant Certificate cannot be exercised.]

  



 


EXERCISABLE ONLY
IF COUNTERSIGNED BY THE WARRANT AGENT AS


PROVIDED HEREIN


 


VOID AFTER [     ] P.M.,
[CITY] TIME, ON                     ,


 
















 


AFFYMAX, INC.


WARRANT
CERTIFICATE REPRESENTING


WARRANTS
TO PURCHASE


[TITLE
OF WARRANT DEBT SECURITIES]


 


	
  No.

  	
   

  	
  Warrants

  



 


This certifies that                     
or registered assigns is the registered owner of the above indicated number of
Warrants, each Warrant entitling such owner [If Warrants are attached to Other
Securities and are not immediately detachable —, subject to the registered
owner qualifying as a “Holder” of this Warrant Certificate, as hereinafter
defined)] to purchase, at any time [after [       ] p.m.,
[City] time, on                        and] on or before [
      ] p.m., [City] time, on                      
, $         principal amount of [Title of Warrant Debt
Securities] (the “Warrant Debt Securities”), of Affymax, Inc. (the “Company”),
issued or to be issued under the Indenture (as hereinafter defined), on the
following basis: during the period from                      
, through and including                      
, each Warrant shall entitle the Holder thereof, subject to the provisions of
this Agreement, to purchase the principal amount of Warrant Debt Securities
stated in the Warrant Certificate at the warrant price (the “Warrant Price”) of
       % of the
principal amount thereof [plus accrued amortization, if any, of the original
issue discount of the Warrant Debt Securities] [plus accrued interest, if any,
from the most recent date from which interest shall have been paid on the
Warrant Debt Securities or, if no interest shall have been paid on the Warrant
Debt Securities, from the date of their original issuance]. [The original issue
discount ($         for each $1,000 principal amount of Warrant
Debt Securities) will be amortized at a        % annual rate,
computed on a[n] [semi-]annual basis [using a 360-day year consisting of twelve
30-day months]. The Holder may exercise the Warrants evidenced hereby by
providing certain information set forth on the back hereof and by paying in
full, in lawful money of the United States of America, [in cash or by certified
check or official bank check in New York Clearing House funds] [by bank wire
transfer in immediately available funds], the Warrant Price for each Warrant
Debt Security with respect to which this Warrant is exercised to the Warrant
Agent (as hereinafter defined) and by surrendering this Warrant Certificate,
with the purchase form on the back hereof duly executed, at the corporate trust
office of [name of Warrant Agent], or its successor as warrant agent (the “Warrant
Agent”), which is, on the date hereof, at the address specified on the reverse
hereof, and upon compliance with and subject to the conditions set forth herein
and in the Warrant Agreement (as hereinafter defined).


 


The term “Holder” as used
herein shall mean [If Warrants are attached to Other Securities and are not
immediately detachable—, prior to                      
,         (the “Detachable Date”), the registered owner
of the Company’s [title of Other Securities] to which this Warrant Certificate
was initially attached, and after such Detachable Date,] the person in whose
name at the time this Warrant Certificate shall be registered upon the books to
be maintained by the Warrant Agent for that purpose pursuant to Section 4
of the Warrant Agreement.


 


The Warrants evidenced by
this Warrant Certificate may be exercised to purchase Warrant Debt Securities
in the principal amount of $1,000 or any integral multiple thereof in
registered form. Upon any exercise of fewer than all of the Warrants evidenced
by this Warrant Certificate, there shall be issued to the Holder hereof a new
Warrant Certificate evidencing Warrants for the aggregate principal amount of
Warrant Debt Securities remaining unexercised.


 


This Warrant Certificate
is issued under and in accordance with the Warrant Agreement dated as of                     ,
      (the “Warrant Agreement”), between the Company
and the Warrant Agent and is subject to the terms and provisions contained in
the Warrant Agreement, to all of which terms and provisions the Holder of this
Warrant Certificate consents by acceptance hereof. Copies of the Warrant
Agreement are on file at the above-mentioned office of the Warrant Agent.


 


The Warrant Debt
Securities to be issued and delivered upon the exercise of Warrants evidenced
by this Warrant Certificate will be issued under and in accordance with an
Indenture, [dated as of 
                    
,         (the “Senior Indenture”), between the Company
and                      
, as trustee (such trustee, and any successors to such trustee, the “Senior
Trustee”)] [dated as of                      
,                      
, (the “Subordinated Indenture”), between the Company and
                    
, as trustee (such trustee, and any successors to such trustee, the “Subordinated
Trustee”)] and will be subject to the terms and provisions contained in the
Warrant Debt Securities and in the Indenture. Copies of the [Senior]
[Subordinated] Indenture, including the form of the Warrant Debt Securities,
are on file at the corporate trust office of the Trustee.


 


[If Warrants are attached
to Other Securities and are not immediately detachable—Prior to the Detachable
Date, this Warrant Certificate may be exchanged or transferred only together
with the [Title of Other Securities] (the “Other Securities”) to which this
Warrant Certificate was initially attached, and only for the purpose of
effecting or in conjunction with, an exchange or transfer of such Other
Security. Additionally, on or prior to the Detachable Date, each transfer of
such Other Security on the register of the Other


 

















 


Securities shall operate
also to transfer this Warrant Certificate. After such date, transfer of this]
[If Warrants are attached to Other Securities and are immediately
detachable—Transfer of this] Warrant Certificate may be registered when this
Warrant Certificate is surrendered at the corporate trust office of the Warrant
Agent by the registered owner or such owner’s assigns, in the manner and
subject to the limitations provided in the Warrant Agreement.


 


[If Other Securities with
Warrants which are not immediately detachable-Except as provided in the
immediately preceding paragraph, after] [If Other Securities with Warrants
which are immediately detachable or Warrants alone—After] countersignature by
the Warrant Agent and prior to the expiration of this Warrant Certificate, this
Warrant Certificate may be exchanged at the corporate trust office of the
Warrant Agent for Warrant Certificates representing Warrants for the same
aggregate principal amount of Warrant Debt Securities.


 


This Warrant Certificate
shall not entitle the Holder hereof to any of the rights of a holder of the
Warrant Debt Securities, including, without limitation, the right to receive
payments of principal of (and premium, if any) or interest, if any, on the
Warrant Debt Securities or to enforce any of the covenants of the Indenture.


 


Reference is hereby made
to the further provisions of this Warrant Certificate set forth on the reverse
hereof, which further provisions shall for all purposes have the same effect as
if set forth at this place.


 


This Warrant Certificate
shall not be valid or obligatory for any purpose until countersigned by the
Warrant Agent.


 


IN WITNESS WHEREOF, the Company has caused this Warrant to be executed in
its name and on its behalf by the facsimile signatures of its duly authorized
officers.


 


	
  Dated:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  AFFYMAX, INC.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Its

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Attest:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Countersigned:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  As
  Warrant Agent

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By

  	
   

  
	
   

  	
   

  	
  Authorized
  Signature

  



 

















 


[REVERSE
OF WARRANT CERTIFICATE]


 


(Instructions
for Exercise of Warrant)


 


To exercise any Warrants
evidenced hereby for Warrant Debt Securities (as hereinafter defined), the
Holder must pay, in lawful money of the United States of America, [in cash or
by certified check or official bank check in New York Clearing House funds] [by
bank wire transfer in immediately available funds], the Warrant Price in full
for Warrants exercised, to [Warrant Agent] [address of Warrant Agent], Attn:                      
, which payment must specify the name of the Holder and the number of Warrants
exercised by such Holder. In addition, the Holder must complete the information
required below and present this Warrant Certificate in person or by mail
(certified or registered mail is recommended) to the Warrant Agent at the
appropriate address set forth above. This Warrant Certificate, completed and
duly executed, must be received by the Warrant Agent within five business days
of the payment.


 


(To be executed
upon exercise of Warrants)


 


The undersigned hereby
irrevocably elects to exercise                     Warrants,
represented by this Warrant Certificate, to purchase $       principal amount of the [Title of Warrant
Debt Securities] (the “Warrant Debt Securities”) of Affymax, Inc. and
represents that he has tendered payment for such Warrant Debt Securities, in
lawful money of the United States of America, [in cash or by certified check or
official bank check in New York Clearing House funds] [by bank wire transfer in
immediately available funds], to the order of Affymax, Inc., c/o [insert
name and address of Warrant Agent], in the amount of $
       in
accordance with the terms hereof. The undersigned requests that said principal
amount of Warrant Debt Securities be in fully registered form in the authorized
denominations, registered in such names and delivered all as specified in
accordance with the instructions set forth below.


 


If the number of Warrants
exercised is less than all the Warrants evidenced hereby, the undersigned
requests that a new Warrant Certificate evidencing the Warrants for the
aggregate principal amount of Warrant Debt Securities remaining unexercised be
issued and delivered to the undersigned unless otherwise specified in the
instructions below.


 


	
  Dated

  	
   

  	
  Name

  	
   

  
	
   

  	
   

  	
   

  	
  Please Print

  
	
   

  	
   

  	
   

  	
   

  
	
  Address:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   (Insert Social Security
  or Other Identifying Number of Holder)

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Signature Guaranteed

  	
   

  	
   

  	
   

  
	
  Signature

  	
   

  	
   

  	
   

  



 


(Signature must conform
in all respects to name of holder as specified on the face of this Warrant
Certificate and must bear a signature guarantee by a FINRA member firm).


 


This Warrant may be
exercised at the following addresses:


 


By hand at


 

















 


By mail at


 


 


[Instructions as to form
and delivery of Warrant Debt Securities and, if applicable, Warrant
Certificates evidencing Warrants for the number of Warrant Debt Securities
remaining unexercised—complete as appropriate.]


 

















 


ASSIGNMENT


 


[Form of
assignment to be executed if Warrant Holder desires to transfer Warrant]


 


FOR VALUE
RECEIVED,                     
hereby sells, assigns and transfers unto:


 


	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  (Please print name and
  address including zip code)

  	
   

  	
  Please print Social
  Security or other identifying number

  



 


the right represented by
the within Warrant to purchase $      aggregate
principal amount of [Title of Warrant Debt Securities] of Affymax, Inc. to
which the within Warrant relates and appoints                        attorney to transfer such right on the books
of the Warrant Agent with full power of substitution in the premises.


 


	
  Dated

  	
   

  
	
   

  	
  Signature

  



 


(Signature must conform
in all respects to name of holder as specified on the face of the Warrant)


 


Signature
Guaranteed