Exhibit 10.12


 


AFFYMAX
INC.


 


EXECUTIVE
EMPLOYMENT AGREEMENT


for


Steven
Love


 


This Employment Agreement (“Agreement”)
is entered into by and between Steven Love (“Executive”)
and Affymax Inc., (the “Company”),
effective as of December 17, 2008 (the “Effective
Date”).


 


WHEREAS, the Company retains the
services of Executive pursuant to that certain Executive Employment Agreement
dated July 21, 2007 (the “Employment Agreement”)
and the Company and Executive hereby wish to amend and restate the Employment
Agreement in its entirety as provided herein;


 


WHEREAS, the Company desires to
continue to employ Executive to provide personal services to the Company, and
wishes to continue to provide Executive with certain compensation and benefits
in return for his services; and


 


WHEREAS, Executive wishes to
continue to be employed by the Company and provide personal services to the
Company in return for certain compensation and benefits;


 


NOW, THEREFORE, in consideration
of the mutual promises and covenants contained herein, it is hereby agreed by
and between the parties hereto as follows:


 


1.                                      EMPLOYMENT
BY THE COMPANY.


 


1.1                               Position.  Subject to terms set forth herein, the
Company agrees to continue to employ Executive in the position of Vice
President, Finance and Chief Accounting Officer and Executive hereby continues
to accept such employment which commenced effective as of August 20, 2007
(the “Employment Date”).  During the term of his employment with the
Company, Executive will devote his best efforts and substantially all of his
business time and attention to the business of the Company, except for vacation
periods as set forth herein and reasonable periods of illness or other
incapacities permitted by the Company’s general employment policies.


 


1.2                               Duties and Location.  Executive shall serve in an executive
capacity and shall perform such duties as are customarily associated with his
then current title, consistent with the Bylaws of the Company and as required
by the Company’s Board of Directors (the “Board”).  Executive will report to the Chief Financial
Officer and Executive Vice President, Corporate Development.  Executive’s primary office location shall be
the Company’s corporate headquarters, currently located in Palo Alto,
California.  The Company reserves the right
to reasonably require Executive to perform his duties at places other than its
corporate headquarters from time to time, and to require reasonable business
travel.


 


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1.3                               Policies and Procedures.  The employment relationship between the
parties shall also be governed by the general employment policies and practices
of the Company, including those relating to protection of confidential
information and assignment of inventions, except that when the terms of this
Agreement differ from or are in conflict with the Company’s general employment
policies or practices, this Agreement shall control.


 


2.                                      COMPENSATION.


 


2.1                               Salary.  As of the Effective Date, Executive shall
receive for services to be rendered hereunder an annualized base salary of
$242,400, payable on a semi-monthly
basis, subject to payroll withholding and deductions and payable in accordance
with the Company’s regular payroll schedule. 
Such salary shall be reviewed annually and may be increased as approved
by the Board.


 


2.2                               Bonus.  As of the Effective Date, Executive will be
eligible to earn an annual bonus of up to thirty (30%) of base salary as
determined by the Board of Directors upon the recommendations of its
Compensation Committee and Chief Executive Officer and provided that Executive
remains employed by the Company as of the date the bonus is calculated.  As of the Effective Date, fifty percent (50%)
of the bonus amount will be based on the Company’s performance in meeting its
planned operating objectives and fifty percent (50%) of the bonus amount will
be based on the Executive’s performance against expectations of his position,
as determined by the Company in its sole discretion.


 


2.3                               Standard
Company Benefits.  Executive shall be
entitled to all rights and benefits for which he is eligible under the terms
and conditions of the standard Company benefits and compensation practices
which may be in effect from time to time and provided by the Company to its
employees generally.


 


2.4                               Equity
Awards.  The Board will grant equity
awards to Executive in its sole discretion.


 


3.                                      PROPRIETARY
INFORMATION OBLIGATIONS.


 


3.1                               Agreement.  As a condition of employment, Executive
agrees to execute and abide by the Proprietary Information and Inventions
Agreement attached hereto as Exhibit A.


 


3.2                               Remedies.  Executive’s duties under the Employee
Proprietary Information and Inventions Agreement shall survive termination of
his employment with the Company. 
Executive acknowledges that a remedy at law for any breach or threatened
breach by him of the provisions of the Proprietary Information and Inventions
Agreement would be inadequate, and he therefore agrees that the Company shall
be entitled to injunctive relief in case of any such breach or threatened
breach.


 


3.3                               Third Party Agreements and Information.  Executive represents and warrants that
Executive’s employment by the Company will not conflict with any prior
employment or consulting agreement or other agreement with any third party, and
that 


 


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Executive will perform
his duties to the Company without violating any such agreement.  Executive represents and warrants that
Executive does not possess confidential information arising out of prior
employment, consulting, or other third party relationships, which would be used
in connection with Executive’s employment by the Company, except as expressly
authorized by that third party.  During
Executive’s employment by the Company, Executive will use in the performance of
Executive’s duties only information which is generally known and used by
persons with training and experience comparable to Executive’s own, common
knowledge in the industry, otherwise legally in the public domain, or obtained
or developed by the Company or by Executive in the course of Executive’s work
for the Company.


 


4.                                      OUTSIDE
ACTIVITIES DURING EMPLOYMENT.


 


4.1                               Non-Company
Business.  Except with the prior
written consent of the Company’s Board of Directors, Executive will not during
the term of this Agreement undertake or engage in any other employment,
occupation or business enterprise, other than ones in which Executive is a
passive investor, provided that
Executive agrees not to become engaged in any other business activity which, in
the reasonable judgment of the Board, is likely to interfere with Executive’s
ability to discharge his duties and responsibilities to the Company.  Executive may engage in civic and
not-for-profit activities so long as such activities do not materially
interfere with the performance of his duties hereunder.


 


4.2                               No Adverse Interests.  Except as permitted by Section 4.3, Executive agrees not to acquire,
assume or participate in, directly or indirectly, any position, investment or
interest known by him to be adverse or antagonistic to the Company, its
business or prospects, financial or otherwise.


 


4.3                               Noncompetition.  During the term of his employment by the
Company, except on behalf of the Company, Executive will not directly or
indirectly, whether as an officer, director, stockholder, partner, proprietor,
associate, representative, consultant, or in any capacity whatsoever engage in,
become financially interested in, be employed by or have any business
connection with any other person, corporation, firm, partnership or other
entity whatsoever which were known by him to compete directly with the Company,
throughout the world, in any
line of business engaged in (or planned to be engaged in) by the Company; provided, however, that anything above to
the contrary notwithstanding, he may own, as a passive investor, securities of
any competitor corporation, so long as his direct holdings in any one such
corporation shall not in the aggregate constitute more than one percent (1%) of
the voting stock of such corporation.


 


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5.                                      TERMINATION
OF EMPLOYMENT.


 


5.1                               At-Will Relationship.  Executive’s employment relationship is
at-will.  Either Executive or the Company
may terminate the employment relationship at any time, with or without cause or
advance notice.


 


5.2                               Termination
Without Cause.


 


(a)                                  The
Company may terminate Executive’s employment with the Company at any time
without Cause, upon notice to Executive.


 


(b)                                  In
the event Executive’s employment is terminated without Cause and such termination
results in a “separation from service” with the Company within the meaning of
Treasury Regulation Section 1.409A-1(h) (without regard to any
permissible alternative definition thereunder), the Company shall provide
Executive the following severance benefits (the “Severance
Benefits”): (i) a lump sum cash severance payment equal to
six (6) months of Executive’s then current annual base salary, less
applicable withholdings and deductions; (ii) if Executive timely elects
continued Company-provided group health insurance coverage pursuant to federal
COBRA law, the Company will pay Executive’s COBRA premiums sufficient to
maintain his group health insurance coverage in effect as of the date of the
termination for twelve (12) months following the termination, provided that the
Company’s obligation to continue to pay Executive’s COBRA premiums hereunder
will cease immediately upon Executive’s eligibility for equivalent group health
insurance coverage through a new employer; (iii) Executive will have the
ability to exercise any vested stock option shares granted to Executive by the
Company until one (1) year following the date of the termination or the
expiration of the term of any such options, whichever occurs earlier.  As a condition precedent to Executive’s
receipt of the Severance Benefits, Executive must properly execute, and not
revoke or attempt to revoke, the Release described in Section 6.


 


5.3                               Termination
for Cause.


 


(a)                                        The
Company may terminate Executive’s employment with the Company at any time for
Cause, upon notice to Executive.


 


(b)                                        “Cause”
for termination shall mean: indictment or conviction of any felony or of any
crime involving dishonesty; participation in any fraud against the Company;
breach of Executive’s duties to the Company, including persistent
unsatisfactory performance of job duties; intentional damage to any property of
the Company; conduct by Executive which in the good faith and reasonable
determination of the Board demonstrates gross unfitness to serve; incapacity to
perform the essential functions of Executive’s job for a period of ninety (90)
consecutive days; or death.


 


(c)                                        In
the event Executive’s employment is terminated at any time with Cause, he shall
be entitled to receive his base salary, and his accrued but unused paid time
off earned through the date of termination; Executive will not be entitled to
severance pay, pay in lieu of notice or any other such compensation, except as
may be 


 


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provided in the Company’s
severance benefit plan, if any, in effect on the termination date, or except as
required by law.


 


5.4                               Termination
for Good Reason.


 


(a)                                  Executive
may voluntarily terminate his employment for “Good Reason” by notifying the
Company in writing that Executive believes that an event described in this Section 5.4(a) has
occurred (the “Constructive Termination Notice”),
within ten (10) days after the initial occurrence of one of the following
events; provided, however, that Executive shall
not have “Good Reason” to terminate employment unless the Company does not cure
the event described in this Section 5.4(a) within thirty (30) days
following receipt by the Company of the Constructive Termination Notice:


 


(i)                                    the
assignment to Executive of any duties or responsibilities which result in the
material diminution of Executive’s position; provided,
however, that the acquisition of the Company and subsequent
conversion of the Company to a division or unit of the acquiring corporation
will not by itself result in a diminution of Executive’s position;


 


(ii)                                a
reduction by the Company in Executive’s annual base salary by greater than
fifteen percent (15%), except to the extent the base salaries of other
executive officers of the Company are accordingly reduced; or


 


(iii)                            a
relocation of Executive, or the Company’s principal executive offices by more
than forty (40) miles, except for required travel by Executive on the Company’s
business.


 


(b)                                  In
the event Executive terminates his employment for Good Reason, and such
termination results in a “separation from service” with the Company within the
meaning of Treasury Regulation Section 1.409A-1(h) (without regard to
any permissible alternative definition thereunder), the Company shall provide
Executive the Severance Benefits described above in Section 5.2(b).


 


5.5                               Voluntary
or Mutual Termination.


 


(a)                                  Executive
may voluntarily terminate his employment with the Company at any time, after
which no further compensation will be paid to Executive.


 


(b)                                  In
the event Executive voluntarily terminates his employment other than for “Good Reason,” he will
not be entitled to severance pay, pay in lieu of notice or any other such
compensation.


 


5.6                               Involuntary
Termination Following a Change in Control.


 


(a)                                  Definition.  For the purposes of this Agreement, a “Change
in Control” shall mean a merger or consolidation of the Company with, or any
sale of all or substantially all of the assets of the Company, to any other
person, corporation or entity, unless as a result of such merger, consolidation
or sale of assets the holders of the 


 


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Company’s voting
securities prior thereto hold at least fifty percent (50%) of the total voting
power represented by the voting securities of the surviving or successor
corporation after such transaction.


 


(b)                                  Severance Benefits.  In the event of the termination of Executive’s
employment without Cause or Executive’s resignation for Good Reason, and in
each case such termination results in a “separation from service” with the Company
within the meaning of Treasury Regulation Section 1.409A-1(h) (without
regard to any permissible alternative definition thereunder) (an “Involuntary Termination”) within
twelve (12) months immediately following the effective date of a Change in
Control, in lieu of the Severance Benefits provided in Sections 5.2 and 5.4
herein, Executive will receive the following benefits upon such Involuntary
Termination (the “Change in Control Benefits”):
(i) a lump sum cash severance payment equal to six (6) months of
Executive’s then current annual base salary, less applicable withholdings and
deductions; (ii) a lump sum cash severance payment equal to one-half (1⁄2)
times Executive’s annual target bonus potential, less applicable withholdings
and deductions; (iii) if Executive timely elects continued
Company-provided group health insurance coverage pursuant to federal COBRA law,
the Company will pay Executive’s COBRA premiums sufficient to maintain his
group health insurance coverage in effect as of the date of the Involuntary
Termination for twelve (12) months following the Involuntary Termination,
provided that the Company’s obligation to continue to pay Executive’s COBRA
premiums hereunder will cease immediately upon Executive’s eligibility for
equivalent group health insurance coverage through a new employer; (iv) Executive
will have the ability to exercise any vested stock option shares granted to
Executive by the Company until one (1) year following the date of the
Involuntary Termination or the expiration of the term of any such option,
whichever occurs earlier; and (v) the vesting of all of Executive’s
outstanding equity awards shall be accelerated so that they vest in full and
the Company’s right to repurchase any earlier exercised shares, if applicable,
shall lapse.  As a condition precedent to
Executive’s receipt of the Change in Control Benefits, Executive must properly
execute, and not revoke or attempt to revoke, the Release described in Section 6.


 


6.                                      RELEASE.  As a condition of receipt of any benefits
under Section 5 of this
Agreement, Executive shall provide the Company with an executed and effective
general release substantially in the form attached hereto as EXHIBIT B (the “Release”).


 


7.                                      NONINTERFERENCE.


 


While employed by the Company, and for two (2) years immediately
following the Termination Date, Executive agrees not to interfere with the
business of the Company by:


 


(a)                                  soliciting,
attempting to solicit, inducing, or otherwise causing any employee of the
Company to terminate employment in order to become an employee, consultant or
independent contractor to or for any other person or entity of the Company; or


 


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(b)                                  directly
or indirectly soliciting the business of any customer of the Company which at
the time of termination or one year immediately prior thereto was listed on the
Company’s customer list.


 


8.                                      COOPERATION WITH COMPANY.


 


8.1                               Cooperation Obligation.  During
and after the term of Executive’s employment, Executive will cooperate with the
Company in responding to the reasonable requests of the Company’s Chairman of
the Board, CEO or General Counsel, in connection with any and all existing or
future litigation, arbitrations, mediations or investigations brought by or
against the Company, or its or their respective affiliates, agents, officers,
directors or employees, whether administrative, civil or criminal in nature, in
which the Company reasonably deems Executive’s cooperation necessary or
desirable.  In such matters, Executive
agrees to provide the Company with reasonable advice, assistance and
information, including offering and explaining evidence, providing sworn
statements, and participating in discovery and trial preparation and
testimony.  Executive also agrees to
promptly send the Company copies of all correspondence (for example, but not
limited to, subpoenas) received by Executive in connection with any such legal
proceedings, unless Executive is expressly prohibited by law from so doing. The
failure by Executive to cooperate fully with the Company in accordance with
this Section 8 will be a material breach of the terms of this Agreement
which will result in all commitments of the Company to make additional payments
to Executive under Section 5
becoming null and void.


 


8.2                               Expenses and Fees.  The Company will reimburse Executive for reasonable out-of-pocket
expenses incurred by Executive as a result of his cooperation with the obligations described in Section 8.1, within thirty (30) days of the
presentation of appropriate documentation thereof, in accordance with the
Company’s standard reimbursement policies and procedures. After termination of
Executive’s employment, the Company will also pay Executive a reasonable fee in
the amount of $200 per hour for
the time Executive devotes to matters as requested by the Company under Section 8.1 (the “Fees”).  The Company will not deduct or withhold any
amount from the Fees for taxes, social security, or other payroll deductions,
but will instead issue an IRS Form 1099 with respect to the Fees.  Executive acknowledges that in
cooperating in the manner described in Section 8.1, he will be serving as an independent contractor, not a
Company employee, and he will be entirely responsible for the payment of all
income taxes and any other taxes due and owing as a result of the payment of
Fees.  Executive hereby indemnifies the
Company and its officers, directors, agents, attorneys, employees,
shareholders, subsidiaries, and affiliates and holds them harmless from any liability
for any taxes, penalties, and interest that may be assessed by any taxing
authority with respect to the Fees, with the exception of the employer’s share
of employment taxes subsequently determined to be applicable, if any.


 


9.                                      DISPUTE RESOLUTION.  To ensure rapid and economical resolution of
any disputes which may arise under this Agreement, Executive and the Company
agree that any and all disputes, claims, or demands in any way arising out of
or relating to this Agreement, Executive’s employment with the Company, or the
termination of Executive’s 


 


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employment with the
Company, shall be resolved by confidential, final and binding arbitration
conducted before a single arbitrator with Judicial Arbitration and Mediation
Services, Inc. (“JAMS”) in
San Francisco, California, under the then-applicable JAMS rules.  The parties  acknowledge that by agreeing to this arbitration procedure, they waive
the right to resolve any such dispute through a trial by jury, judge or
administrative proceeding.  The
Company shall bear JAMS’ arbitration fees and administrative costs.  The arbitrator shall:  (a) have the authority to compel
adequate discovery for the resolution of the dispute and to award such relief
as would otherwise be permitted by law; and (b) issue a written
arbitration decision including the arbitrator’s essential findings and
conclusions and a statement of the award. 
The arbitrator, and not a court, shall also be authorized to determine
whether the provisions of this paragraph apply to a dispute, controversy, or
claim sought to be resolved in accordance with these arbitration
procedures.  Notwithstanding the foregoing, Executive and
the Company shall each have the right to resolve any dispute or cause of action
involving Company trade secrets, proprietary information, or intellectual
property (including, without limitation, inventions assignment rights under
California Labor Code Section 2870, and rights under patent, trademark, or
copyright law) by court action instead of arbitration.  Nothing in this Agreement is intended
to prevent either Executive or the Company from obtaining injunctive relief in
court to prevent irreparable harm pending the conclusion of any such
arbitration.


 


10.                               TAX
PROVISIONS.


 


10.1                        Best After-Tax.


 


(a)                                  If any payment or benefit Executive would
receive pursuant to a Change in Control from the Company or otherwise (“Payment”) would (i) constitute
a “parachute payment” within the meaning of Section 280G of the Code, and (ii) but
for this sentence, be subject to the excise tax imposed by Section 4999 of
the Code (the “Excise Tax”),
then such Payment shall be equal to the Reduced Amount.  The “Reduced Amount” shall be either (x) the
largest portion of the Payment that would result in no portion of the Payment
being subject to the Excise Tax, or (y) the largest portion, up to and
including the total, of the Payment, whichever amount referenced in the
foregoing (x) or (y), after taking into account all applicable federal,
state and local employment taxes, income taxes, and the Excise Tax (all
computed at the highest applicable marginal rate), results in Executive’s
receipt of the greatest economic benefit notwithstanding that all or some
portion of the Payment may be subject to the Excise Tax. If a reduction in
payments or benefits constituting “parachute payments” is necessary so that the
Payment equals the Reduced Amount, reduction shall occur in a manner necessary
to provide Executive with the greatest economic benefit.  If more than one manner of reduction of
payments or benefits necessary to arrive at the Reduced Amount yields the
greatest economic benefit, the payments and benefits shall be reduced pro rata.


 


(b)                                  The independent registered public accounting
firm engaged by the Company for general audit purposes as of the day prior to
the effective date of the event described in Section 280G(b)(2)(A)(i) of
the Code shall perform the foregoing calculations.  If the independent registered public
accounting firm so engaged by the 


 


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Company
is serving as accountant or auditor for the individual, entity or group
effecting such event, the Company shall appoint a nationally recognized
independent registered public accounting firm to make the determinations
required hereunder.  The Company shall
bear all expenses with respect to the determinations by such independent
registered public accounting firm required to be made hereunder.  The independent registered public accounting
firm engaged to make the determinations hereunder shall provide its
calculations, together with detailed supporting documentation, to the Company
and Executive within fifteen (15) calendar days after the date on which
Executive’s right to a Payment is triggered (if requested at that time by the
Company or Executive) or such other time as requested by the Company or
Executive.  Any good faith determinations
of the independent registered public accounting firm made hereunder shall be
final, binding and conclusive upon the Company and Executive.


 


10.2                        Compliance with Section 409A.  All payments provided under this
Agreement are intended to constitute separate payments for purposes of Treasury
Regulation Section 1.409A-2(b)(2). 
Any lump sum cash severance payment pursuant to Sections 5.2(b)(i) or
5.4(b) shall be paid as soon as practicable following the date of the
termination of Executive’s employment without Cause resulting in a “separation
from service” with the Company within the meaning of Treasury Regulation
1.409A-1(h) (without regard to any permissible alternative definition
thereunder) or Executive’s resignation for Good Reason resulting in a “separation
from service” with the Company within the meaning of Treasury Regulation
1.409A-1(h) (without regard to any permissible alternative definition
thereunder), but in no event later than March 15th of the
calendar year following such termination. 
It is the intention of the preceding sentence to apply the “short-term
deferral rule” set forth in Treasury Regulation Section 1.409A-1(b)(4) to
such payments.  Amounts paid in
connection with group health insurance coverage pursuant to COBRA under
Sections 5.2(b)(ii) or 5.4(b) are intended to be paid pursuant to the
exception provided by Treasury Regulation Section 1.409A-1(b)(9)(v)(B).


 


11.                               GENERAL
PROVISIONS.


 


11.1                        Notices.  Any notices provided hereunder must be in
writing and shall be deemed effective upon the earlier of personal delivery
(including personal delivery by fax) or the next day after sending by overnight
carrier, to the Company at its primary office location and to Executive at his
address as listed on the Company payroll.


 


11.2                        Severability.  Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in
any jurisdiction, such invalidity, illegality or unenforceability will not
affect any other provision or any other jurisdiction, but this Agreement will
be reformed, construed and enforced in such jurisdiction to the extent possible
in keeping with the intent of the parties.


 


11.3                        Waiver.  If either party should waive any breach of
any provisions of this Agreement, he or it shall not thereby be deemed to have
waived any preceding or succeeding breach of the same or any other provision of
this Agreement.


 


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11.4        Complete Agreement.  This Agreement and Exhibit A, constitute
the entire agreement between Executive and the Company and it is the complete,
final, and exclusive embodiment of their agreement with regard to this subject
matter.  It is entered into without
reliance on any promise or representation other than those expressly contained
herein, and it cannot be modified or amended except in a writing signed by an
officer of the Company.


 


11.5        Counterparts.  This Agreement may be executed in separate
counterparts, any one of which need not contain signatures of more than one
party, but all of which taken together will constitute one and the same
Agreement.


 


11.6        Headings.  The headings of the sections hereof are
inserted for convenience only and shall not be deemed to constitute a part
hereof nor to affect the meaning thereof.


 


11.7        Successors and Assigns.  This Agreement is intended to bind and inure
to the benefit of and be enforceable by Executive and the Company, and their
respective successors, assigns, heirs, executors and administrators, except
that Executive may not assign any of his duties hereunder and he may not assign
any of his rights hereunder without the written consent of the Company, which
shall not be withheld unreasonably.


 


11.8        Attorneys’ Fees.  If either party hereto brings any action to
enforce his or its rights hereunder, the prevailing party in any such action
shall be entitled to recover his or its reasonable attorneys’ fees and costs
incurred in connection with such action.


 


11.9        Choice of Law.  All questions concerning the construction,
validity and interpretation of this Agreement will be governed by the law of
the State of California.


 


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IN WITNESS WHEREOF, the parties
have executed this Agreement on the day and year first above written.


 


	
   

  	
  Affymax Inc.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Arlene M. Morris

  
	
   

  	
   

  	
  Arlene M. Morris

  
	
   

  	
   

  	
  Chief Executive Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Date: December 17, 2008

  



 


	
  Accepted and agreed this

  17th day of
  December, 2008.

  	
   

  
	
   

  	
   

  
	
  Steven Love, an Individual

  	
   

  
	
   

  	
   

  
	
  /s/ Steven Love

  	
   

  



 


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EXHIBIT A


 


EMPLOYEE PROPRIETARY INFORMATION AND INVENTIONS
AGREEMENT


 

















 


EXHIBIT B


 


RELEASE AGREEMENT