Exhibit 10.34


 


AFFYMAX INC.


 


EXECUTIVE EMPLOYMENT AGREEMENT


for


Robert F. Venteicher


 


This Employment
Agreement (“Agreement”) is entered into
by and between Robert F. Venteicher (“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 24, 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 Senior Vice
President, Technical Operations and Executive hereby continues to accept such
employment which commenced effective as of July 30, 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 Executive
Officer.  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.


 


 


1.3                               Policies and Procedures.  The employment relationship between the
parties shall also be governed by the general employment policies and practices
of the 


 


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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
$300,000, 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-five percent (35%) 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, seventy-five (75%)
of the bonus amount will be based on the Company’s performance in meeting its
planned operating objectives and twenty-five percent (25%) 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 Executive will perform his  duties
to the Company without violating any such agreement.  


 


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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 twelve (12) months of
Executive’s then current annual base salary, less applicable withholdings and
deductions; (ii) a lump sum cash severance payment equal to one (1) 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 employment with the Company, shall be resolved by
confidential, final and binding 


 


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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                        Gross-Up Payment.


 


(a)                                  Subject
to the possible limitation set forth in Section 10.1(b) below, if any
payment or benefit received or to be received by Executive in connection with a
Change in Control or otherwise (“Payment”)
would subject Executive to the excise tax (the “Excise
Tax”) imposed by Section 4999 of the Internal Revenue Code
of 1986, as amended (the “Code”),
then Executive shall be entitled to receive an additional payment from the
Company, in an amount not to exceed two hundred fifty thousand dollars
($250,000) (the “Gross-Up Payment”), such that
after the payment of all taxes (including, without limitation, any income or
employment taxes, any interest or penalties imposed with respect to such taxes,
and any additional excise tax imposed by Section 4999 of the Code) on the
Gross-Up Payment, Executive shall retain an amount equal to the full Excise
Tax.  For purposes of determining the
amount of the Gross-Up Payment, Executive shall be deemed to have (i) paid
federal income taxes at the highest marginal rate of federal income taxation
for the calendar year in which the Gross-Up Payment is to be made; (ii) paid
federal employment taxes at Executive’s actual marginal rate for the calendar
year in which the Gross-Up Payment is to be made; and (iii) paid
applicable state and local income taxes at the highest rate of taxation for the
calendar year in which the Gross-Up Payment is to be made, net of the maximum
reduction in federal income taxes which could be obtained from deduction of
such state and local taxes.  Except as
otherwise provided herein, Executive shall not be entitled to any additional
payments or other indemnity arrangements in connection with the Payment or the
Gross-Up Payment.  Notwithstanding any
other provision in Section 10.1, the aggregate amount of the Gross-Up
Payment shall not exceed two hundred fifty thousand dollars ($250,000).


 


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(b)                                  Notwithstanding
the foregoing, the amount of the Payment when aggregated with the Gross-Up
Payment (the “Total Parachute Payments”)
shall be equal to the Reduced Amount. 
The “Reduced Amount” shall be either (i) the largest portion of the
Total Parachute Payments that would result in no portion of the Total Parachute
Payments being subject to the Excise Tax, or (ii) the largest portion, up
to and including the total, of the Total Parachute Payments, whichever amount
referenced in the foregoing (i) or (ii), after taking into account all
applicable federal, state and local employment taxes, income taxes, and the
Excise Tax, results in Executive’s receipt of the greatest economic benefit
notwithstanding that all or some portion of the Total Parachute Payments may be
subject to the Excise Tax. If a reduction in payments or benefits constituting “parachute
payments” is necessary so that the Total Parachute Payments 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.


 


(c)                                  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 make all
determinations required to be made under this Section 10.1.  If the independent registered public
accounting firm so engaged by the 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 (the “Accounting Firm”) required to be
made hereunder.  The 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
Accounting Firm made hereunder shall be final, binding and conclusive upon the
Company and Executive.


 


(d)                                  As
a result of the uncertainty in the application of Section 4999 of the Code
at the time of the initial determination by the Accounting Firm hereunder, it
is possible that Gross-Up Payments which will not have been made by the Company
should have been made (“Underpayment”),
consistent with the calculations required to be made hereunder.  If the Company exhausts its remedies pursuant
to Section 10.1(e) hereof and Executive thereafter is required to
make a payment of any Excise Tax, the Accounting Firm shall determine the
amount of the Underpayment that has occurred, and any such Underpayment,
together with any additional penalties or interest thereon, shall be promptly
paid by the Company to or for the benefit of Executive.


 


(e)                                  Executive
shall notify the Company in writing of any claim by the Internal Revenue
Service that, if successful, would require the payment by the Company of a
Gross-Up Payment.  Such notification
shall be given as soon as practicable but no later than ten (10) business
days after Executive is informed in writing of such claim and shall 


 


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apprise the Company of
the nature of such claim and the date on which such claim is requested to be
paid.  Executive shall not pay such claim
prior to the expiration of the thirty (30)-day period following the date on
which Executive has given such notice to the Company (or such shorter period
ending on the date that any payment of taxes with respect to such claim is
due).  If the Company notifies Executive
in writing prior to the expiration of such period that it desires to contest
such claim, Executive shall:


 


(i)                                    Give the Company
any information reasonably requested by the Company relating to such claim;


 


(ii)                                Take such action in
connection with contesting such claim as the Company shall reasonably request
in writing from time to time, including, without limitation, accepting legal
representation with respect to such claim by an attorney reasonably selected by
the Company;


 


(iii)                            Cooperate with the Company
in good faith in order effectively to contest such claim; and


 


(iv)                               Permit the Company to
participate in any proceedings relating to such claim; provided,
however, that the Company shall bear and pay directly all costs and
expenses (including additional interest and penalties) incurred in connection
with such contest and shall indemnify and hold Executive harmless, on an
after-tax basis, for any Excise Tax or federal, state, and local income and
employment tax (including interest and penalties with respect thereto) imposed
as a result of such representation and payment of costs and expenses.  Without limitation on the foregoing
provisions of this Section 10.1(e), the Company shall control all
proceedings taken in connection with such contest and, at its sole option, may
pursue or forego any and all administrative appeals, proceedings, hearings and
conferences with the taxing authority in respect of such claim and may, at its
sole option, either direct Executive to pay the tax claimed and sue for a
refund or contest the claim in any permissible manner, and Executive agrees to
prosecute such contest to a determination before any administrative tribunal,
in a court of initial jurisdiction and in one or more appellate courts, as the
Company shall determine; provided, however,
that if the Company directs Executive to pay such claim and sue for a refund,
the Company shall advance the amount of such payment to Executive, on an
interest-free basis, and shall indemnify and hold Executive harmless, on an
after-tax basis, from any Excise Tax or federal, state, and local income and
employment tax (including interest or penalties with respect thereto) imposed
with respect to such advance or with respect to any imputed income with respect
to such advance; and provided, further,
Executive shall not be required to extend the statute of limitations relating
to the payment of taxes for the taxable year of Executive with respect to which
such contested amount is claimed to be due, other than an extension limited
solely to such contested amount. Furthermore, the Company’s control of the
contest shall be limited to issues with respect to which a Gross-Up Payment
would be payable hereunder and Executive shall be entitled to settle or
contest, as the case may be, any other issue raised by the Internal Revenue
Service or any other taxing authority.


 


(f)                                    If,
after the receipt by Executive of any amount paid by the Company relating to a
Gross-up Payment pursuant to Section 10.1(a) hereof or advanced by
the Company pursuant to Section 10.1(e) hereof, Executive becomes
entitled to receive any 


 


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refund with respect to
such amounts, Executive shall (subject to the Company’s complying with the
requirements of Section 10.1(e) hereof) promptly pay to the Company
the amount of such refund (together with any interest paid or credited thereon
after taxes applicable thereto).  If,
after the receipt by Executive of an amount advanced by the Company pursuant to
Section 10.1(e) hereof, a determination is made that Executive shall
not be entitled to any refund with respect to such claim and the Company does
not notify Executive in writing of its intent to contest such denial of refund
prior to the expiration of thirty (30) days after such determination, then such
advance shall be forgiven and shall not be required to be repaid, and the
amount of such advance shall offset, to the extent thereof, the amount of
Gross-Up Payment required to be paid.


 


(g)                                 If,
pursuant to regulations issued under Section 280G or 4999 of the Code, the
Company and Executive are required to make a preliminary determination of the
amount of an excess parachute payment and thereafter a redetermination of the
Excise Tax is required or the Company is permitted to make a recalculation with
regard to stock options and elects to do so under the applicable regulations,
the parties shall request the Accounting Firm to make such
redetermination.  If as a result of such
redetermination an additional Gross-Up Payment is required, the amount thereof
shall be paid by the Company to Executive within ten (10) business days of
the receipt of the Accounting Firm’s determination.  If the redetermination of the Excise Tax
results in a reduction of the Excise Tax, Executive shall take such steps as
the Company may reasonably direct in order to obtain a refund of the excess
Excise Tax paid.  If the Company
determines that any suit or proceeding is necessary or advisable in order to
obtain such refund, the provisions of Section 10.1(e) hereof relating
to the contesting of a claim shall apply to the claim for such refund,
including, without limitation, the provisions concerning legal representation,
cooperation by Executive, participation by the Company in the proceedings and
indemnification by the Company.  Upon
receipt of any such refund, Executive shall promptly pay the amount of such
refund to the Company.  If the amount of
the income taxes otherwise payable by Executive in respect of the year in which
Executive makes such payment to the Company is reduced as a result of such
payment, Executive shall, no later than the filing of the income tax return in
respect of such year, pay the amount of such tax benefit to the Company.  In the event there is a subsequent
redetermination of Executive’s income taxes resulting in a reduction of such
tax benefit, the Company shall, promptly after receipt of notice of such
reduction, pay to Executive the amount of such reduction.  If the Company objects to the calculation or
recalculation of the tax benefit, as described in the preceding two sentences,
the Accounting Firm shall make the final determination of the appropriate
amount.  Executive shall not be obligated
to pay to the Company the amount of any further tax benefits that may be
realized by him as a result of paying to the Company the amount of the initial
tax benefit.


 


(h)                                 In
the event that the Excise Tax is subsequently determined to be less than
initially determined, Executive shall repay to the Company at the time that the
amount of such reduction in Excise Tax is determined (but, if previously paid
to the taxing authorities, not prior to the time the amount of such reduction
is refunded to Executive or otherwise realized as a benefit by Executive) the
portion of the Gross-Up Payment that would not have been paid if the Excise Tax
as subsequently determined had been applied initially in calculating the
Gross-Up Payment, with the amount of such repayment determined by the
Accounting Firm; provided that the amount of required repayment by Executive
shall be 


 


11

















 


reduced, as the
Accounting Firm may determine, in order to avoid putting Executive in a worse
after-tax position than Executive would have enjoyed had the amount of Excise
Tax been correctly determined in the first instance, such determination to be
made on a basis consistent with the intention of this Section 10.1, which
is to make Executive whole on an after-tax basis on account of any Excise Tax
(including related interest and penalties) up to an aggregate amount of two
hundred fifty thousand dollars ($250,000). 
Executive and the Company shall each have the right at all times to have
the Accounting Firm review and confirm or revise earlier calculations.


 


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).  Amounts paid pursuant to Sections
10.1(a), 10.1(d) and 10.1(h) shall be paid no later than the end of
Executive’s taxable year next following Executive’s taxable year in which
Executive remits the related taxes. 
Amounts paid pursuant to Sections 10.1(e) and 10.1(g) shall be
paid no later than the end of Executive’s taxable year following the Executive’s
taxable year in which the taxes that are the subject of the audit or litigation
are remitted to the taxing authority, or where as a result of such audit or
litigation no taxes are remitted, the end of Executive’s taxable year following
Executive’s taxable year in which the audit is completed or there is a final
and nonappealable settlement or other resolution of the litigation.


 


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.


 


12

















 


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.


 


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.


 


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

  



 


13

















 


	
  Accepted and agreed
  this

  	
   

  
	
  17th day of December,
  2008.

  	
   

  
	
   

  	
   

  
	
  Robert F. Venteicher, an
  Individual

  	
   

  
	
   

  	
   

  
	
  /s/ Robert F.
  Venteicher

  	
   

  



 


14

















 


EXHIBIT A


 


EMPLOYEE PROPRIETARY INFORMATION
AND INVENTIONS AGREEMENT


 

















 


EXHIBIT B


 


RELEASE AGREEMENT