Vice President, Finance Employment Agreement

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 ...