Exhibit 4.5


 


FORM OF
WARRANT


 


AFFYMAX, INC.


 


WARRANT TO PURCHASE
[        ] SHARES OF COMMON STOCK


 


Date of Issuance: March     ,
2009


 


VOID AFTER March [    ], 2014


 


THIS
CERTIFIES THAT, for value received,
[        ], or permitted registered
assigns (the “Holder”),
is entitled to subscribe for and purchase at the Exercise Price (defined below)
from Affymax, Inc., a Delaware corporation (the “Company”), up to
[        ] shares of the common stock
of the Company, par value $0.001 per share (the “Common Stock”).  This warrant is issued by the Company as of
the date hereof (the “Warrant”)
pursuant to that certain Securities Purchase Agreement between the Company and
the Investor dated as of February 13, 2009 (the “Purchase Agreement”).


 


1.                                      DEFINITIONS.  Capitalized terms used herein but not
otherwise defined herein shall have their respective meanings as set forth in
the Purchase Agreement.  As used herein,
the following terms shall have the following respective meanings:


 


(a)                                  “Business Day” means a
day, other than a Saturday or Sunday, on which banks in Palo Alto, California
are open for the general transaction of business.


 


(b)                                  “Eligible Market”
means any of the New York Stock Exchange, the American Stock Exchange, The
NASDAQ Global Select Market, The NASDAQ Global Market or The NASDAQ Capital
Market.


 


(c)                                  “Exercise Period”
shall mean the period commencing on the date hereof and ending five years from
the date hereof, unless sooner terminated as provided below.


 


(d)                                  “Exercise Price” shall
mean $16.775 per share, subject to adjustment pursuant to Section 4 below.


 


(e)                                  “Exercise Shares”
shall mean the shares of Common Stock issuable upon exercise of this Warrant.


 


(f)                                    “Fundamental Transaction”
means that the Company shall, directly or indirectly, in one or more related
transactions, (i) consolidate or merge with or into (whether or not the
Company is the surviving corporation) another Person, or (ii) sell,
assign, transfer, convey or otherwise dispose of all or substantially all of
the properties or assets of the Company to another Person, or (iii) enter
into an agreement with another Person pursuant to which such Person agrees to
make a purchase, tender or exchange offer that is accepted by the holders of


 

















 


more than the
50% of the outstanding shares of Common Stock, or (iv) consummate a stock
purchase agreement or other business combination (including, without
limitation, a reorganization, recapitalization, spin-off or scheme of
arrangement) with another Person whereby such other Person acquires more than
the 50% of the outstanding shares of Common Stock (not including any shares of
Common Stock held by the other Person or other Persons making or party to, or
associated or affiliated with the other Persons making or party to, such stock
purchase agreement or other business combination), (v) reorganize,
recapitalize, or reclassify its Common Stock or (vi) any “person” or “group”
(as these terms are used for purposes of Sections 13(d) and 14(d) of
the Exchange Act) is or shall become the “beneficial owner” (as defined in Rule 13d-3
under the Exchange Act), directly or indirectly, of 50% of the aggregate
ordinary voting power represented by issued and outstanding Common Stock.


 


(g)                                 “Parent Entity” of a
Person means an entity that, directly or indirectly, controls the applicable
Person and whose common stock or equivalent equity security is quoted or listed
on an Eligible Market, or, if there is more than one such Person or Parent
Entity, the Person or Parent Entity with the largest public market
capitalization as of the date of consummation of the Fundamental Transaction.


 


(h)                                 “Person” means an
individual, a limited liability company, a partnership, a joint venture, a
corporation, a trust, an unincorporated organization, any other entity and a
government or any department or agency thereof.


 


(i)                                    “Successor Entity”
means the Person (or, if so elected by the Holder, the Parent Entity) formed
by, resulting from or surviving any Fundamental Transaction or the Person (or,
if so elected by the Holder, the Parent Entity) with which such Fundamental
Transaction shall have been entered into.


 


(j)                                    “Trading Day” shall
mean (a) any day on which the Common Stock is listed or quoted and traded
on its primary Trading Market, (b) if the Common Stock is not then listed
or quoted and traded on any Eligible Market, then a day on which trading occurs
on the OTC Bulletin Board (or any successor thereto), or (c) if trading
does not occur on the OTC Bulletin Board (or any successor thereto), any
Business Day.


 


(k)                                “Trading Market” shall
mean the OTC Bulletin Board or any other Eligible Market, or any national
securities exchange, market or trading or quotation facility on which the
Common Stock is then listed or quoted.


 


2.                                      EXERCISE
OF WARRANT.


 


2.1                               Exercise.  The rights represented by this Warrant may be
exercised in whole or in part at any time during the Exercise Period, by
delivery of the following to the Company at its address set forth on the
signature page hereto (or at such other address as it may designate by
notice in writing to the Holder):


 


(a)                                  An
executed Notice of Exercise in the form attached hereto;


 


(b)                                  Payment
of the Exercise Price either (i) in cash or by check or (ii) pursuant
to Section 2.2 below; and


 

















 


(c)                                  This
Warrant.


 


Execution and
delivery of the Notice of Exercise shall have the same effect as cancellation
of the original Warrant and issuance of a new Warrant evidencing the right to
purchase the remaining number of Exercise Shares, if any.


 


Certificates
for shares purchased hereunder shall be transmitted by the transfer agent of
the Company to the Holder by crediting the account of the Holder’s prime broker
with the Depository Trust Company through its Deposit Withdrawal Agent
Commission system if the Company is a participant in such system, and otherwise
by physical delivery to the address specified by the Holder in the Notice of
Exercise within three (3) business days from the delivery to the Company
of the Notice of Exercise, surrender of this Warrant and payment of the
aggregate Exercise Price as set forth above. 
This Warrant shall be deemed to have been exercised on the date the
Exercise Price is received by the Company.


 


The person in
whose name any certificate or certificates for Exercise Shares are to be issued
upon exercise of this Warrant shall be deemed to have become the holder of
record of such shares on the date on which this Warrant was surrendered and
payment of the Exercise Price was made, irrespective of the date of delivery of
such certificate or certificates, except that, if the date of such surrender and
payment is a date when the stock transfer books of the Company are closed, such
person shall be deemed to have become the holder of such shares at the close of
business on the next succeeding date on which the stock transfer books are
open.


 


Subject to the
final sentence of this paragraph and to the extent permitted by law, the
Company’s obligations to issue and deliver Exercise Shares in accordance with
the terms hereof are absolute and unconditional, irrespective of any action or
inaction by the Holder to enforce the same, any waiver or consent with respect
to any provision hereof, the recovery of any judgment against any person or
entity or any action to enforce the same, or any setoff, counterclaim,
recoupment, limitation or termination, or any breach or alleged breach by the
Holder or any other person or entity of any obligation to the Company or any
violation or alleged violation of law by the Holder or any other person or
entity, and irrespective of any other circumstance which might otherwise limit
such obligation of the Company to the Holder in connection with the issuance of
Exercise Shares.  The Holder shall,
subject to the following proviso, have the right to pursue any remedies
available to it hereunder, at law or in equity including, without limitation, a
decree of specific performance and/or injunctive relief with respect to the
Company’s failure to timely deliver Exercise Shares upon exercise of this
Warrant as required pursuant to the terms hereof; provided, however,
that notwithstanding anything to the contrary in this Warrant or in the
Purchase Agreement, if the Company is for any reason unable to deliver Exercise
Shares upon exercise of this Warrant as required pursuant to the terms hereof,
the Company shall have no obligation to pay to the Holder any cash or other
consideration or otherwise “net cash settle” this Warrant.  Accordingly, the Holder understands that the
Warrant may expire unexercised and be deprived of any value


 


Except for
cash in lieu of fractional shares as provided in Section 5, this Warrant may not be settled by the Company
for cash to the Holder in lieu of Common Stock.


 
















 


2.2          Net
Exercise.  If
during the Exercise Period the fair market value of one share of the Common
Stock is greater than the Exercise Price (at the date of calculation as set
forth below), in lieu of exercising this Warrant by payment of cash or by
check, the Holder may, at its election, effect a “net exercise” of this
Warrant, in which event, if so effected, the Holder shall receive Exercise
Shares equal to the value (as determined below) of this Warrant (or the portion
thereof being canceled) by surrender of this Warrant at the principal office of
the Company, together with the properly endorsed Notice of Exercise, in which
event the Company shall issue to the Holder a number of shares of Common Stock
computed using the following formula:


 


	
  X =

  	
    Y (A-B)

  	
   

  
	
   

  	
  A

  	
   

  



 


	
  Where

  	
  X = the
  number of Exercise Shares to be issued to the Holder

  
	
   

  	
   

  
	
   

  	
  Y = the
  number of Exercise Shares with respect to which this Warrant is being
  exercised

  
	
   

  	
   

  
	
   

  	
  A = the Fair
  Market Value (as defined below) of one share of the Company’s Common Stock
  (at the date of such calculation)

  
	
   

  	
   

  
	
   

  	
  B = Exercise
  Price (as adjusted to the date of such calculation)

  



 


For purposes
of this Warrant, the “Fair
Market Value” of one share of Common Stock shall mean (i) the
closing sales price for the shares of Common Stock on the Eligible Market where
the Common Stock is listed or traded as reported by Bloomberg Financial Markets
(or a comparable reporting service of national reputation selected by the
Company and reasonably acceptable to the Holder if Bloomberg Financial Markets
is not then reporting sales prices of such security) (collectively, “Bloomberg”) for the
day immediately prior to the Exercise Date, or (ii) if an Eligible Market
is not the principal Trading Market for the shares of Common Stock, the
reported sales price reported by Bloomberg on the principal Trading Market for
the Common Stock for the same trading day, or, if there is no sales price for
such trading day, the last sales price reported by Bloomberg for such trading
day, or (iii) if neither of the foregoing applies, the last sales price of
such security in the over-the-counter market on the pink sheets or bulletin
board for such security as reported by Bloomberg, or if no sales price is so
reported for such security, the last bid price of such security as reported by
Bloomberg or (iv) if fair market value cannot be calculated as of such
date on any of the foregoing bases, the fair market value shall be as
determined by the Board of Directors of the Company in the exercise of its good
faith judgment.


 


2.3          Issuance
Of New Warrant. 
Upon any partial exercise of this Warrant, the Company, at its expense,
will forthwith and, in any event within three (3) business days, issue and
deliver to the Holder a new warrant or warrants of like tenor, registered in
the name of the Holder, exercisable, in the aggregate, for the balance of the
number of shares of Common Stock remaining available for purchase under this
Warrant.


 


2.4          Payment
Of Taxes And Expenses. 
The Company shall pay any recording, filing, stamp or similar tax which
may be payable in respect of any transfer involved in the issuance of, and the
preparation and delivery of certificates (if applicable) representing, (i) 


 

















 


any Exercise
Shares purchased upon exercise of this Warrant and/or (ii) new or replacement
warrants in the Holder’s name or the name of any transferee of all or any
portion of this Warrant; provided, however, that the Company shall not be
required to pay any tax which may be payable in respect of any transfer
involved in the issuance, delivery or registration of any certificates for
Exercise Shares or Warrants in a name other than that of the Holder.  The Holder shall be responsible for all other
tax liability that may arise as a result of holding or transferring this
Warrant or receiving Exercise Shares upon exercise hereof.


 


3.                                      COVENANTS
OF THE COMPANY.


 


3.1          Covenants
as to Exercise Shares. 
The Company covenants and agrees that all Exercise Shares that may be
issued upon the exercise of the rights represented by this Warrant will, upon
issuance, be validly issued and outstanding, fully paid and nonassessable, and
free from all taxes, liens and charges with respect to the issuance
thereof.  The Company further covenants
and agrees that the Company will at all times during the Exercise Period, have
authorized and reserved, free from preemptive rights, a sufficient number of
shares of Common Stock to provide for the exercise of the rights represented by
this Warrant.  If at any time during the
Exercise Period the number of authorized but unissued shares of Common Stock
shall not be sufficient to permit exercise of this Warrant, the Company will
use its commercially reasonable efforts to take such corporate action in
compliance with applicable law as may, in the opinion of its counsel, be necessary
to increase its authorized but unissued shares of Common Stock to such number
of shares as shall be sufficient for such purposes.


 


3.2          Notices
of Record Date and Certain Other Events.  In the event of any taking by the Company of
a record of the holders of any class of securities for the purpose of
determining the holders thereof who are entitled to receive any dividend or
other distribution, the Company shall mail to the Holder, at least fifteen (15)
days prior to the date on which any such record is to be taken for the purpose
of such dividend or distribution, a notice specifying such date.  In the event of any voluntary dissolution,
liquidation or winding up of the Company, the Company shall mail to the Holder,
at least fifteen (15) days prior to the date of the occurrence of any such
event, a notice specifying such date.  In
the event the Company authorizes or approves, enters into any agreement
contemplating, or solicits stockholder approval for any Fundamental
Transaction, as defined in Section 6
herein, the Company shall mail to the Holder, at least fifteen (15) days prior
to the date of the closing of such event, a notice specifying such date.  Notwithstanding the foregoing, the failure to
deliver such notice or any defect therein shall not affect the validity of the
corporate action required to be described in such notice.


 


4.                                      ADJUSTMENT
OF EXERCISE PRICE AND SHARES.


 


The Exercise
Price and number of Exercise Shares issuable upon exercise of this Warrant are
subject to adjustment from time to time as set forth in this Section 4.


 


(a)           If
the Company, at any time while this Warrant is outstanding, (i) pays a
stock dividend on its Common Stock or otherwise makes a distribution on any
class of capital stock that is payable in shares of Common Stock, (ii) subdivides
outstanding shares of Common Stock into a larger number of shares, or (iii) combines
outstanding shares of Common Stock into a smaller number of shares, then in
each such case the Exercise Price shall be multiplied by a


 

















 


fraction of which
the numerator shall be the number of shares of Common Stock outstanding
immediately before such event and of which the denominator shall be the number
of shares of Common Stock outstanding immediately after such event.  Any adjustment made pursuant to clause (i) of
this paragraph shall become effective immediately after the record date for the
determination of stockholders entitled to receive such dividend or
distribution, and any adjustment pursuant to clause (ii) or (iii) of
this paragraph shall become effective immediately after the effective date of
such subdivision or combination.


 


(b)           If
the Company, at any time while this Warrant is outstanding, distributes to
holders of Common Stock (i) evidences of its indebtedness, (ii) any
security (other than a distribution of Common Stock covered by the preceding
paragraph), (iii) rights or warrants to subscribe for or purchase any
security, or (iv) any other asset (in each case, “Distributed Property”),
then in each such case the Holder shall be entitled upon exercise of this
Warrant for the purchase of any or all of the Exercise Shares, to receive the
amount of Distributed Property which would have been payable to the Holder had
such Holder been the holder of such Exercise Shares on the record date for the determination
of stockholders entitled to such Distributed Property.  The Company will at all times set aside in
escrow and keep available for distribution to such holder upon exercise of this
Warrant a portion of the Distributed Property to satisfy the distribution to
which such Holder is entitled pursuant to the preceding sentence.


 


(c)           Upon
the occurrence of each adjustment pursuant to this Section 4, the Company at its expense will, at the
written request of the Holder, promptly compute such adjustment in accordance
with the terms of this Warrant and prepare a certificate setting forth such
adjustment, including a statement of the adjusted Exercise Price and adjusted
number or type of Exercise Shares or other securities issuable upon exercise of
this Warrant (as applicable), describing the transactions giving rise to such
adjustments and showing in detail the facts upon which such adjustment is
based.  Upon written request, the Company
will promptly deliver a copy of each such certificate to the Holder and to the
Company’s transfer agent.


 


5.                                      FRACTIONAL
SHARES.  No fractional shares shall
be issued upon the exercise of this Warrant as a consequence of any adjustment
pursuant hereto.  All Exercise Shares
(including fractions) issuable upon exercise of this Warrant may be aggregated
for purposes of determining whether the exercise would result in the issuance
of any fractional share.  If, after
aggregation, the exercise would result in the issuance of a fractional share (a) the
Company shall, in lieu of issuance of any fractional share, pay the Holder
otherwise entitled to such fraction a sum in cash equal to the product
resulting from multiplying the then-current fair market value of an Exercise
Share by such fraction and (b) the number of Exercise Shares to be issued
will be rounded down to the nearest whole share.


 


6.                                      FUNDAMENTAL
TRANSACTIONS.  If the Company enters
into or becomes a party to a Fundamental Transaction, then the Company shall
ensure that lawful and adequate provision shall be made whereby the Holder
shall thereafter have the right to purchase and receive upon the basis and upon
the terms and conditions herein specified and in lieu of the Exercise Shares
immediately theretofore issuable upon exercise of this Warrant, such shares of
stock, securities or assets as would have been issuable or payable with respect
to or in exchange for a number of Exercise Shares equal to the number of
Exercise Shares immediately theretofore issuable upon exercise of this Warrant,
had such Fundamental Transaction not taken place, and in any such 


 

















 


case
appropriate provision shall be made with respect to the rights and interests of
the Holder to the end that the provisions hereof (including, without
limitation, provision for adjustment of the Exercise Price) shall thereafter be
applicable, as nearly equivalent as may be practicable in relation to any share
of stock, securities or assets thereafter deliverable upon the exercise
thereof.  The Company shall not effect
any such Fundamental Transaction unless prior to or simultaneously with the
consummation thereof the Successor Entity (if other than the Company) resulting
from such Fundamental Transaction, or the entity purchasing or otherwise
acquiring such assets or other appropriate corporation or entity shall assume the
obligation to deliver to the Holder, at the last address of the Holder
appearing on the books of the Company, such shares of stock, securities or
assets as, in accordance with the foregoing provisions, the Holder may be
entitled to purchase, and all of the other obligations under this Warrant.  The provisions of this Section 6 shall similarly apply to
successive reorganizations, reclassifications, consolidations, mergers, sales,
transfers or other dispositions, each of which transactions shall also constitute
a Fundamental Transaction.


 


7.             NO
STOCKHOLDER RIGHTS.   Other than as provided in Section 3.2 or otherwise herein, this
Warrant in and of itself shall not entitle the Holder to any voting rights or
other rights as a stockholder of the Company.


 


8.             TRANSFER
OF WARRANT. 
Subject to applicable laws and any restrictions on transfer set forth in
the Purchase Agreement, this Warrant and all rights hereunder are transferable,
by the Holder in person or by duly authorized attorney, upon delivery of this
Warrant and the form of assignment attached hereto to any transferee designated
by Holder.  The transferee, except as set
forth in the following sentence, shall sign an investment letter in form and
substance reasonably satisfactory to the Company and its counsel.
Notwithstanding any provisions to the contrary herein or in the Purchase
Agreement, in the case of a partnership distribution by the Holder or its
transferees (pursuant to this Section 8), the foregoing investment letter
may be evidenced by a unilateral instruction letter or similar notice provided
by the then Holder to each transferee referencing this Warrant and informing
the transferee that, by accepting the distribution of the Exercise Shares, the
transferee shall be subject to the provisions, restrictions and conditions
specified in this Section 8 if and to the extent that such Exercise Shares
continue to be restricted securities in the hands of the transferee.  Any purported transfer of all or any portion
of this Warrant in violation of the provisions of this Warrant shall be null
and void.


 


9.             LOST,
STOLEN, MUTILATED OR DESTROYED WARRANT.  If this Warrant is lost, stolen, mutilated or
destroyed, the Company may, on such terms as to indemnity as it may reasonably
impose (which shall, in the case of a mutilated Warrant, include the surrender
thereof), issue a new Warrant of like denomination and tenor as this Warrant so
lost, stolen, mutilated or destroyed. 
Any such new Warrant shall constitute an original contractual obligation
of the Company, whether or not the allegedly lost, stolen, mutilated or
destroyed Warrant shall be at any time enforceable by anyone.


 


10.          NOTICES,
ETC.  All
notices required or permitted hereunder shall be in writing and shall be deemed
effectively given: (a) upon personal delivery to the party to be notified,
(b) when sent by confirmed facsimile to the facsimile number specified in
writing by the recipient if sent during normal business hours of the recipient
on a Trading Day, if not, then on the next 


 

















 


Trading Day,
or (c) the next Trading Day after deposit with a nationally recognized
overnight courier, specifying next day delivery, with written verification of
receipt.  All communications shall be
sent to the Company at the address listed on the signature page hereto and
to Holder at the applicable address set forth on the applicable signature page to
the Purchase Agreement or at such other address as the Company or Holder may
designate by ten (10) days advance written notice to the other parties
hereto.


 


11.          ACCEPTANCE.  Receipt of this Warrant by the Holder shall
constitute acceptance of and agreement to all of the terms and conditions
contained herein.


 


12.          GOVERNING
LAW.  This
Warrant and all rights, obligations and liabilities hereunder shall be governed
by, and construed in accordance with, the internal laws of the State of
Delaware, without giving effect to the principles of conflicts of law that
would require the application of the laws of any other jurisdiction.


 


13.          AMENDMENT
OR WAIVER.  Any
term of this Warrant may be amended or waived (either generally or in a
particular instance and either retroactively or prospectively) with the written
consent of the Company and the Holder. 
No waivers of any term, condition or provision of this Warrant, in any
one or more instances, shall be deemed to be, or construed as, a further or
continuing waiver of any such term, condition or provision.


 


[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]


 

















 


IN
WITNESS WHEREOF, the Company has caused this Warrant
to be executed by its duly authorized officer as of March [    ],
2009.


 


 


	
   

  	
  AFFYMAX, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name: Paul B
  Cleveland

  
	
   

  	
   

  	
  Title:   Executive Vice President & 

  Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
  Address:

  
	
   

  	
  4001 Miranda
  Avenue

  
	
   

  	
  Palo Alto,
  California 94304

  



 

















 


NOTICE OF EXERCISE


 


TO:         AFFYMAX, INC.


 


(1)   The undersigned hereby
elects to purchase [        ] shares of
the common stock, par value $0.001 (the “Common Stock”), of AFFYMAX, INC. (the “Company”) pursuant to
the terms of the attached Warrant, and tenders herewith payment of the exercise
price in full, together with all applicable transfer taxes, if any.


 


[  ] The undersigned hereby elects to purchase
[        ] shares of Common Stock of
the Company pursuant to the terms of the net exercise provisions set forth in Section 2.2 of the attached Warrant,
and shall tender payment of all applicable transfer taxes, if any.


 


(2)   Please issue the certificate
for shares of Common Stock in the name of, and pay any cash for any fractional
share to:


 


Print or type name


 


Social Security or other Identifying Number


 


Street Address


 


City State Zip Code


 


(3)   If such number of shares
shall not be all the shares purchasable upon the exercise of the Warrants
evidenced by this Warrant, a new warrant certificate for the balance of such
Warrants remaining unexercised shall be registered in the name of and delivered
to:


 


Please insert social security or other identifying number:


 


(Please print name and address)


 


	
  Dated:

  	
   

  
	
   

  	
   

  
	
  (Date)

  	
   

  
	
   

  	
  (Signature)

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  (Print name)

  



 

















 


ASSIGNMENT FORM


 


(To assign the
foregoing Warrant, execute this form and supply required information.  Do not use this form to purchase shares.)


 


FOR VALUE
RECEIVED, the foregoing Warrant and all rights evidenced thereby are hereby
assigned to


 


	
  Name:

  	
   

  
	
   

  	
   

  
	
   

  	
  (Please
  Print)

  
	
   

  	
   

  
	
  Address:

  	
   

  
	
   

  	
   

  
	
   

  	
  (Please
  Print)

  
	
   

  	
   

  
	
  Dated:

  	
  ,
  20[    ]

  	
   

  
	
   

  	
   

  
	
  Holder’s
  Signature:

  	
   

  	
   

  
	
   

  	
   

  
	
  Holder’s
  Address:

  	
   

  	
   

  
					



 


NOTE: The
signature to this Assignment Form must correspond with the name as it
appears on the face of the Warrant, without alteration or enlargement or any
change whatever.  Officers of
corporations and those acting in a fiduciary or other representative capacity
should file proper evidence of authority to assign the foregoing Warrant.