Exhibit 10.36


 


AMENDMENT NO. 1 TO


COMMON STOCK PURCHASE AGREEMENT


 


This
Amendment No. 1 (the “Amendment”) is entered into this 17th day of September 2010
(“Amendment Effective Date”) by and between Azimuth Opportunity Ltd., an
international business company incorporated under the laws of the British
Virgin Islands (the “Investor”), and Affymax, Inc., a corporation
organized and existing under the laws of the State of Delaware (the “Company”)
and amends that certain Common Stock Purchase Agreement (the “Agreement”)
between the Investor and the Company dated as of September 25, 2009.
Capitalized terms used but not defined herein shall have the meanings ascribed
to such terms in the Agreement.


 


RECITALS


 


WHEREAS, the parties desire to amend the terms of the Agreement
to, among other matters, provide for an extension of the term of the Agreement
by twelve (12) months and to reduce the Threshold Price to be no lower than
$4.00;


 


NOW THEREFORE, the parties hereto, for good and valuable
consideration, the receipt of which is hereby acknowledged, hereby agree as
follows:


 


1.                                      Amendment
and restatement of Sections 2.1 and 2.2.  Sections 2.1 and 2.2 are hereby amended and
restated in their entirety as follows:


 


“Section 2.1                             Fixed Request Notice.  The Company may,
from time to time in its sole discretion, no later than 9:30 a.m. (New
York time) on the first Trading Day of the Pricing Period, provide to the
Investor a Fixed Request notice, substantially in the form attached hereto as Exhibit A
(the “Fixed Request Notice”), which Fixed Request Notice shall become
effective at 9:30 a.m. (New York time) on the first Trading Day of the
Pricing Period specified in the Fixed Request Notice; provided; however,
that if the Company delivers the Fixed Request Notice to the Investor later
than 9:30 a.m. (New York time) on a Trading Day, then the first Trading
Day of such Pricing Period shall not be the Trading Day on which the Investor
received such Fixed Request Notice, but shall be the Trading Day thereafter.
The Fixed Request Notice shall specify the Fixed Amount Requested, establish
the Threshold Price for such Fixed Request, designate the first and last
Trading Day of the Pricing Period and specify the Optional Amount, if any, that
the Company elects to grant to the Investor during the Pricing Period and the
applicable Threshold Price for such Optional Amount (the “Optional Amount
Threshold Price”) as well as the maximum and, if any, minimum Optional
Amount Dollar Amount. The Threshold Price and the Optional Amount Threshold
Price established by the Company in a Fixed Request Notice may be the same or
different, in the Company’s sole discretion. 
Upon the terms and subject to the conditions of this Agreement, the
Investor is obligated to accept each Fixed Request Notice prepared and delivered
in accordance with the provisions of this Agreement.


 


2.2                               Fixed Requests.  From time to time
during the Investment Period, the Company may in its sole discretion deliver to
the Investor a Fixed Request Notice for a specified Fixed Amount Requested, and
the applicable discount price (the “Discount Price”) shall be
determined, in accordance with the price and share amount parameters as set
forth below or such other parameters mutually agreed upon by the Investor and
the Company, and upon the terms and 


 

















 


subject to the conditions of this
Agreement, the Investor shall purchase from the Company the Shares subject to
such Fixed Request Notice; provided, however, that (i) if an
ex-dividend date is established by the Trading Market in respect of the Common
Stock on or between the first Trading Day of the applicable Pricing Period and
the applicable Settlement Date, the Discount Price shall be reduced by the per
share dividend amount and (ii) the Company may not deliver any single
Fixed Request Notice for a Fixed Amount Requested in excess of the lesser of (a) the
amount in the applicable Fixed Amount Requested column below and (b) 2.5%
of the Market Capitalization:


 


	
  Threshold Price

  	
   

  	
  Fixed Amount Requested

  	
   

  	
  Discount Price

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Equal
  to or greater than $36.00

  	
   

  	
  Not
  to exceed $5,250,000

  	
   

  	
  96.25%
  of the VWAP

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Equal
  to or greater than $34.00 and less than $36.00

  	
   

  	
  Not
  to exceed $5,000,000

  	
   

  	
  96.20%
  of the VWAP

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Equal
  to or greater than $32.00 and less than $34.00

  	
   

  	
  Not
  to exceed $4,750,000

  	
   

  	
  96.15%
  of the VWAP

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Equal
  to or greater than $30.00 and less than $32.00

  	
   

  	
  Not
  to exceed $4,500,000

  	
   

  	
  96.10%
  of the VWAP

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Equal
  to or greater than $28.00 and less than $30.00

  	
   

  	
  Not
  to exceed $4,250,000

  	
   

  	
  96.05%
  of the VWAP

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Equal
  to or greater than $26.00 and less than $28.00

  	
   

  	
  Not
  to exceed $4,000,000

  	
   

  	
  96.00%
  of the VWAP

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Equal
  to or greater than $24.00 and less than $26.00

  	
   

  	
  Not
  to exceed $3,750,000

  	
   

  	
  95.80%
  of the VWAP

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Equal
  to or greater than $22.00 and less than $24.00

  	
   

  	
  Not
  to exceed $3,500,000

  	
   

  	
  95.60%
  of the VWAP

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Equal
  to or greater than $20.00 and less than $22.00

  	
   

  	
  Not
  to exceed $3,250,000

  	
   

  	
  95.40%
  of the VWAP

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Equal
  to or greater than $18.00 and less than $20.00

  	
   

  	
  Not
  to exceed $3,000,000

  	
   

  	
  95.20%
  of the VWAP

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Equal
  to or greater than $16.00 and less than $18.00

  	
   

  	
  Not
  to exceed $2,750,000

  	
   

  	
  95.00%
  of the VWAP

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Equal
  to or greater than $14.00 and less than $16.00

  	
   

  	
  Not
  to exceed $2,500,000

  	
   

  	
  94.75%
  of the VWAP

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Equal
  to or greater than $12.00 and less than $14.00

  	
   

  	
  Not
  to exceed $2,250,000

  	
   

  	
  94.50%
  of the VWAP

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Equal
  to or greater than $10.00 and less than $12.00

  	
   

  	
  Not
  to exceed $2,000,000

  	
   

  	
  94.38%
  of the VWAP

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Equal
  to or greater than $4.00 and less than $10.00

  	
   

  	
  Not
  to exceed $1,750,000

  	
   

  	
  94.25%
  of the VWAP

  



 


Anything to the contrary in this
Agreement notwithstanding, unless Company and Investor mutually agree, at no
time shall the Investor be required to purchase more than the applicable amount
worth of Common Stock pursuant to the preceding paragraph in respect of any
Pricing Period (not including Common Stock subject to any Optional
Amount).  The date on which the Company
delivers any Fixed Request Notice in accordance with this Section 2.2
hereinafter shall be referred to as a “Fixed Request Exercise Date”.”


 


2.                                      Amendment
and restatement of Section 7.1(i).  Section 7.1(i) is hereby amended and
restated as follows:


 

















 


“(i) the
first day of the month next following the 36-month anniversary of the Effective
Date (the “Investment Period”),”


 


3.                                      Amendment
of Annex A, Sections (kkk) and (ooo).  Annex A, Sections (kkk) and (ooo) are hereby
respectively amended and restated as follows:


 


“(kkk) “Threshold
Price” is the lowest price (except to the extent otherwise provided in Section 2.6)
at which the Company may sell Shares during the applicable Pricing Period as
set forth in a Fixed Request Notice (not taking into account the applicable
percentage discount during such Pricing Period determined in accordance with Section 2.2);
provided, however, that at no time shall the Threshold Price be
lower than $4.00 per share unless the Company and the Investor mutually shall
agree.”; and


 


“(ooo)
“Trading Market Limit” means that number of shares which is one less
than 20.0% of the issued and outstanding shares of the Company’s Common Stock
as of the Amendment Effective Date.”


 


4.                                      No other amendment.  Except as expressly set forth above, the
remaining terms and conditions of the Agreement shall remain in full force and
effect.


 


5.                                      Governing law. This Amendment shall be governed by and
construed in accordance with the internal procedure and substantive laws of the
State of New York, without giving effect to the choice of law provisions of
such state.


 


6.                                      Counterparts. This Amendment
may be executed in counterparts, all of which taken together shall constitute
one and the same original and binding instrument and shall become effective
when all counterparts have been signed by each party and delivered to the other
parties hereto, it being understood that all parties hereto need not sign the
same counterpart.


 


IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed by their respective authorized officer as of the date first above
written.


 


	
   

  	
  AFFYMAX, INC.:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Paul B. Cleveland

  
	
   

  	
   

  	
  Name:
  Paul B. Cleveland

  
	
   

  	
   

  	
  Title:
  Chief Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
  AZIMUTH
  OPPORTUNITY LTD.:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Peter Poole

  
	
   

  	
   

  	
  Name:
  Peter Poole

  
	
   

  	
   

  	
  Title:
  Director